J v L & A Services Pty Ltd (No 2)

No judgment structure available for this case.

IN THE COURT OF APPEAL	[1993] QCA 012
SUPREME COURT OF QUEENSLAND
Appeal No. 135 of 1992
BETWEEN:

J.

First Respondent/Plaintiff

AND:

L. & A. SERVICES PTY. LTD.

Appellant/First Defendant

AND:

DRS. J.J. SULLIVAN,
N.J. NICOLAIDES & PARTNERS

Appellants/Second Defendants

AND:

WORKERS' COMPENSATION BOARD OF
QUEENSLAND

Appellant/Respondent

Appeal No. 136 of 1992

BETWEEN:

R.

First Respondent/Plaintiff

AND:

L. & A. SERVICES PTY. LTD.

Appellant/First Defendant

AND:

DRS. J.J. SULLIVAN,
N.J. NICOLAIDES & PARTNERS

Appellants/Second Defendants

AND:

WORKERS' COMPENSATION BOARD OF
QUEENSLAND

Appellant/Respondent

Appeal No. 137 of 1992

BETWEEN:

J.

First Respondent/Plaintiff

AND:

L. & A. SERVICES PTY. LTD.

Appellant/First Defendant

AND:

DRS. J.J. SULLIVAN,
N.J. NICOLAIDES & PARTNERS

Appellants/Second Defendants

AND:

WORKERS' COMPENSATION BOARD OF
QUEENSLAND

Third Respondent/Respondent
Appeal No. 138 of 1992

BETWEEN:

R.

First Respondent/Plaintiff

AND:

L. & A. SERVICES PTY. LTD.

Appellant/First Defendant

AND:

DRS. J.J. SULLIVAN,
N.J. NICOLAIDES & PARTNERS

Appellants/Second Defendants

AND:

WORKERS' COMPENSATION BOARD OF
QUEENSLAND

Third Respondent/Respondent

REASONS FOR JUDGMENT - PRESIDENT AND LEE J.

Delivered the fifteenth day of February, 1993

The respondents to this appeal, a married couple with teenage

children, have sued their employer and an associated group of medical
practitioners for breach of contract of employment, negligence and breach
of statutory duty. The defendants, together with the Workers' Compensation
Board of Queensland, (the "appellants") have appealed to this Court against

orders made in the Trial Division on 3 July 1992.

So far as presently material, those orders are as follows:

"1. The Plaintiff be at liberty to commence proceedings in this
Honourable Court against L & A Services Pty. Ltd. and Drs. J.J.
Sullivan N.J. Nicolaides and Partners ("the proceedings") so
that the Plaintiff be not referred to therein by name, but by
the reference "J";

2.

All documents filed and served subsequently in the proceedings identify the Plaintiff by the reference "J", save for the jurat of the original of any affidavit required to be sworn by the Plaintiff.

3.

The Plaintiff's solicitors serve upon each of the Defendants to the proceedings and upon the Workers Compensation Board of Queensland, at the time of service of the Writ -

(a) a copy of this Order; and
(b) written notice of the name and address of the Plaintiff.

4.

Except to the extent necessary for the preparation of the parties' cases and on the undertaking first obtained of the person to whom the matter is published not to republish the matter, publication be prohibited of or any report of:

(a) the commencement of the proceedings by the Plaintiff;
(b) the hearing of this Application;

(c)

the contents of the affidavit in support of, and the Order made in, this Application;

(d)

the Statement of Claim or any subsequent documents in the proceedings, or any information derive [sic] therefrom;

(e)

the hearing of any interlocutory process in the proceedings; or
(f) any other matter relating to these proceedings,

to the extent only that publication might tend to identify the Plaintiff or the name, address or occupation of the Plaintiff.

5.

The affidavits and exhibits upon which this Application was based including the Affidavit of John Musgrave be placed in a sealed envelope only to be opened on the order of the Judge.

6.

Any Application or Request under Order 87 of the Rules of the Supreme Court be referred to a Judge.
7. Nothing in this Order shall prevent the Defendants from
providing information concerning the action, including the
identity of the Plaintiff, to

(a) their present, past or prospective Insurers; and
(b) the Director of Accident Prevention.

8.

That the Reasons for Decision herein be also placed in the said sealed envelope

AND LIBERTY IS GRANTED to the parties to use such Reasons for Decision and any other documents in such sealed envelope to the extent that may be necessary to bring any Appeal and for no further purpose.

9.

The Orders numbered 2-8 have effect unless and until an order is made to the contrary."
Each of the respondents is a scientist employed as a technician in

connection with a pathology practice. Their essential contention is that
each acquired the human immuno-deficiency virus while taking and handling
biological specimens and reagents in the course of their employment, or
alternatively that one of the respondents acquired the virus in that manner
and that his or her spouse did so through sexual intercourse. According to
the respondents, as a result of the virus each is at risk of contracting

AIDS and has suffered a loss of expectation of life.

The male respondent swore an affidavit containing the following

paragraphs, and the female respondent swore an affidavit in substantially
identical terms:

"9. That from my perception of community standards as a member of

that community I verily believe that as a person who has been tested
HIV positive that I might be ostracised within such community, suffer
discrimination and have social situations made extremely difficult
for both myself, my wife and my family should the fact of my said
medical condition become known to members of the public other than my
employer, the proposed Defendants and my medical and legal advisors.

10. That I am also concerned that there is a real likelihood of the

proceedings receiving widespread media coverage if my identity
becomes known.

11. That I am informed by my medical advisor Dr. Catherine May Downes and verily believe, that should my proposed litigation be exposed to publicity that the same may cause my general medical condition to be exacerbated by the stress associated with such exposure.

. . . "

The respondents' general medical practitioner, Dr Downes, also swore

affidavits in which she said it was likely that each respondent would
"suffer great distress, prejudice or ostracism within the community" if it
became publicly known that he or she "is a potential AIDS sufferer", and
that each of the respondent's "general medical condition may be exacerbated
by exposure to the stress which would be caused by exposure to publicity."

One of the partners in the pathology practice also swore an affidavit

in which he referred to the nature and size of its very extensive
operations. In all, about 1000 staff are employed, including 78 at the
laboratory at which the respondents are employed along with 13 other
technicians with "similar qualifications and standing". Paragraphs 8 to 12
of his affidavit were in the following terms:

"8. There is a considerable amount of hysteria surrounding the
Human Immuno Deficiency Virus (HIV) and Acquired Immune
Deficiency Syndrome (AIDS).

9.

I verily believe that media coverage will be attracted to the proposed litigation.

10.

If the orders sought by the Claimants are made the public may gain the false impression that the Claimant is a member of the public who has become HIV positive as a result of having blood taken by the partnership or the company.
11. I am concerned that the hysteria surrounding the Virus and
related illness is such that if the identity of the Claimants
is not disclosed at the interlocutory stages of the proceedings
(and before the full facts are known and can be tested and
explained) the general public will, as a consequence of the
false impression to which I have referred, be fearful and
refrain from using the services of the company and partnership
for blood collection and testing.

12.

Further, the general public may be fearful and refrain from supplying blood tested in the fear (and I believe false belief) that there is a risk of infection through testing and I verily believe that such would be against the public interest. ...".
The primary judge made the orders reluctantly, out of deference to

decisions by judges in other States which he considered supported such an
approach. However, he indicated that he would otherwise not have allowed
the application, and expressed concern at the possibility that there would
be an increased practice of making such orders.

It may be said immediately that we do not think the orders should be

upheld by this court on the basis of comity if they are not otherwise
sustainable. There is, as yet, insufficient to warrant a conclusion that
there is an established practice of prohibiting the identification of the
identities of plaintiffs in such proceedings, and it has not been decided
by an appellate court in Australia that it would ordinarily be proper to do
so.

On this appeal, all parties accepted that court proceedings are

ordinarily open to the public and may be the subject of fair and accurate
reporting and discussion. It was also common ground that the openness of
proceedings generally extends to access not only to hearings but also to
court records in accordance with appropriate court rules. Further, it was
acknowledged that usually these principles are not absolute, but that a
court has the power to make exceptions. It was not suggested that the
Supreme Court's inherent power had been relevantly restricted by statute or
rules. The dispute for resolution on this appeal centres upon the nature
and scope of the court's power and its proper exercise in the circumstances

of this case.

The leading case is Scott v. Scott (1913) AC 417, where it was held
that an order that a nullity suit be heard in camera and that the details
not subsequently be made public was wrongly made. The trial judge, whose
decision had been affirmed by the Court of Appeal, had considered it
sufficient that it was "desirable for the sake of public decency or
morality that the hearing should take place in private", a test which had
previously been applied in matrimonial proceedings by the Ecclesiastical
Courts. This view was rejected by the House of Lords, which held that an
order to exclude the public is permissible only when absolutely necessary,
and not when merely expedient, to attain justice. There was, however,
considerable divergence in the formulation of what restraints on openness
are permissible and in the reasons given for the opinions which were
expressed.

Different views are also to be found stated in more recent authority,

with some indication that, in England at least, a superior court's
extensive power to control its procedures permits restraints on openness in
relation to particular aspects of court proceedings even where there is no
justification for a general exclusion of the public.

In Attorney-General v. Leveller Magazine Ltd. (1979) A.C. 440, magistrates who were conducting committal proceedings in relation to offences under the Official Secrets Act made an order that an army officer

who was a witness for the prosecution should be referred to as "Colonel B"
and that his name should be written down and shown only to the court, the
defendants and their counsel. Subsequently, during cross-examination, the
witness gave information from which his identity could be ascertained and
his name was published in three magazines. The Attorney-General brought
proceedings to commit the publishers of the magazines and other persons
responsible for their publication for contempt of court. The Divisional
Court held the appellants guilty of contempt, but the House of Lords
allowed an appeal. However, the course taken by the magistrates of allowing
the witness to conceal his identity was upheld and, in the course of the
judgments, opinions were expressed concerning the power of a court to sit

in camera.

Lord Diplock said at pp.449-450:
"As a general rule the English system of administering justice does
require that it be done in public: Scott v. Scott [1913] A.C. 417. If
the way that courts behave cannot be hidden from the public ear and
eye this provides a safeguard against judicial arbitrariness or
idiosyncrasy and maintains the public confidence in the
administration of justice. The application of this principle of open
justice has two aspects: as respects proceedings in the court itself
it requires that they should be held in open court to which the press
and public are admitted and that, in criminal cases at any rate, all
evidence communicated to the court is communicated publicly. As
respects the publication to a wider public of fair and accurate
reports of proceedings that have taken place in court the principle
requires that nothing should be done to discourage this.
However, since the purpose of the general rule is to serve the ends
of justice it may be necessary to depart from it where the nature or
circumstances of the particular proceeding are such that the
application of the general rule in its entirety would frustrate or
render impracticable the administration of justice or would damage
some other public interest for whose protection Parliament has made
some statutory derogation from the rule. Apart from statutory
exceptions, however, where a court in the exercise of its inherent
power to control the conduct of proceedings before it departs in any
way from the general rule, the departure is justified to the extent
and to no more than the extent that the court reasonably believes it
to be necessary in order to serve the ends of justice. A familiar
instance of this is provided by the "trial within a trial" as to the
admissibility of a confession in a criminal prosecution. The due
administration of justice requires that the jury should be unaware of
what was the evidence adduced at the "trial within a trial" until
after they have reached their verdict; but no greater derogation from
the general rule as to the public nature of all proceedings at a
criminal trial is justified than is necessary to ensure this. So far
as proceedings in the courtroom are concerned the trial within a
trial is held in open court in the presence of the press and public
but in the absence of the jury. So far as publishing those
proceedings outside the court is concerned any report of them which
might come to the knowledge of the jury must be withheld until after
they have reached their verdict; but it may be published after that.
Only premature publication would constitute contempt of court."

Viscount Dilhorne said at pp.457-458:

"Proceedings in the courts of this country are normally conducted in
public. The courts have, however, inherent jurisdiction to sit in
camera if that is necessary for the due administration of justice:
see Scott v. Scott [1913] A.C. 417; Rex v. Governor of Lewes Prison,
Ex parte Doyle (1917) 2 K.B. 254, per Lord Reading C.J., at p.271;
Attorney-General v. Times Newspapers Ltd. [1974] A.C. 273, per Lord
Reid, at p.294. In Scott v. Scott Lord Loreburn said, at p.446:
`... in all cases where the public has been excluded with
admitted propriety the underlying principle, as it seems to me,
is that the administration of justice would be rendered
impracticable by their presence, whether because the case could
not be effectively tried, or the parties entitled to justice
would be reasonably deterred from seeking it at the hands of
the court.'

It cannot be said that disclosure of "Colonel B's" name would have
rendered the trial of the three accused impracticable, nor is it in
my opinion the case that its disclosure would have reasonably
deterred the Crown from instituting prosecutions for offences under
the Official Secrets Act which ought in the national interest to be
brought. The likely result if the magistrates had refused the
application made by the Crown would have been an application that the
court should sit in camera for his name to be given, the rest of his
evidence being given in open court, and the likely consequence in
future cases that there would be more applications for sittings in
camera. So in the present case the administration of justice was not
rendered impracticable on either of the two grounds mentioned by Lord
Loreburn. Nor do I think that it can be said that the writing down
of "Colonel B's" name involved less derogation from the open
administration of justice than the giving of his name in camera with
the rest of his evidence being given in open court.
If the criteria which apply in relation to the exercise of the
court's inherent jurisdiction to sit in camera apply in relation to
allowing or directing a witness to write down his name, then I do not
think that those criteria are satisfied in this case; but I have come
to the conclusion that they do not apply.
Judges and justices have a wide measure of control over the conduct
of proceedings in their courts. On occasions for a variety of reasons
witnesses are allowed to write down a piece of evidence instead of
giving it orally and I know of a number of occasions when in Official
Secrets Act cases witnesses have been allowed to conceal their
identity. In my opinion it is within the jurisdiction of the court
to allow this in the exercise of control over the conduct of the
proceedings just as a judge is entitled to send a jury out in the
course of a trial and to have a trial within a trial."

Lord Edmund-Davies said at p.464:

"It is beyond doubt that a court has a wide inherent jurisdiction to
control its own procedure. In certain circumstances it may decide to
sit wholly or in part in camera. Or witnesses may be ordered to
withdraw, "lest they trim their evidence by hearing the evidence of
others" (as Earl Loreburn put it in Scott v. Scott [1913] A.C. 417,
446). Or part of a criminal trial may be ordered to take place in the
absence of the jury, such as during the hearing of legal submissions
or during a "trial within a trial" regarding the admissibility of an
alleged confession. Or the court may direct that throughout the
hearing in open court certain witnesses are to be referred to by
letter or number only. But it does not follow that, were a person
(and even one with knowledge of the procedure which had been adopted)
thereafter to make public that which had been wholly or partially
concealed, he would be ipso facto guilty of contempt. Nothing
illustrates this more clearly than the hearing of evidence in camera,
"... it [being] plain that inherent jurisdiction exists in any
court which enables it to exclude the public where it becomes
necessary in order to administer justice." (Rex v. Governor of
Lewes Prison, Ex parte Doyle [1917] 2 K.B. 254, per Viscount
Reading C.J. at p.271)."

Lord Scarman, who took a more restricted view, said at pp.470-471:

"Examining justices also have the common law power, which belongs to
all courts, to sit in private in the exceptional cases specified in
Scott v. Scott [1913] A.C. 417.
In Scott v. Scott your Lordships' House affirmed the general rule of the common law that justice must be administered in public. Certain exceptions were, however, recognised. The interest of national security was not one of them; indeed, it was not mentioned in any of the speeches. The House was divided as to whether protection of the administration of justice from interference was an exception. A majority held that it was - though their respective formulations of the exception differed markedly in emphasis. Earl Loreburn held the underlying principle to be that the public were to be excluded if "the administration of justice would be rendered impracticable in their presence" (p.446) Viscount Haldane L.C. thought that
"to justify an order for hearing in camera it must be shown"
(my emphasis) "that the paramount object of securing that
justice is done would really be rendered doubtful of attainment
if the order were not made" (p.439).

Lord Halsbury - maxime dubitans (p.442) - agreed with the Lord

Chancellor, while also, in effect, agreeing with Lord Shaw of
Dunfermline who thought the ground put forward by the Lord Chancellor
was "very dangerous ground" (p.485).
While paying heed to the dangers of extending this sensitive branch
of the law by judicial decision, I think it plain that the basis of
the modern law is as Viscount Haldane declared it was. It follows:
(1) that, in the absence of express statutory provision (eg. section
8(4) of the Act of 1920), a court cannot sit in private merely
because it believes that to sit in public would be prejudicial to
national safety, (2) that, if the factor of national safety appears
to endanger the due administration of justice, eg., by deterring the
Crown from prosecuting in cases where it should do so, a court may
sit in private, (3) that there must be material (not necessarily
formally adduced evidence) made known to the court upon which it can
reasonably reach its conclusion.
"The device" - the second question.
In the present case the justices, instead of sitting in private,
adopted the device of allowing a piece of evidence to be written down
and requiring it not be mentioned in open court. If they took this
course in the interest of justice, they adopted what Lord Widgery
C.J. described as a convenient device, for it achieved a result,
i.e., no mention of the name in open court, which otherwise would
only be achieved by the court going into camera. In other words, it
was a substitute for sitting in private. I agree with Lord Widgery
C.J. in believing this device to be a valuable and proper extension
of the common law power to sit in private, and to be available where
the court would have power at common law to sit in private but
chooses not to do so. I think Reg v. Socialist Worker Printers and
Publishers Ltd., Ex parte Attorney-General [1975] Q.B. 637 (a
blackmail case) was correctly decided."
In R. v. Chief Registrar of Friendly Societies, Ex parte New Cross

Building Society (1984) 1 QB 227, the Chief Registrar of Friendly Societies
made a decision which effectively prevented the Society from accepting
money for investment because, in the Chief Registrar's opinion, the Society
had conducted its business imprudently. The Society applied for judicial
review and the judge quashed the Chief Registrar's orders. An appeal by
the Chief Registrar to the Court of Appeal was allowed. The whole of the
proceedings before the Judge and the Court of Appeal up to and including
the delivery of judgment were heard in camera. Although the order for the
proceedings to be heard in camera was lifted when the appeal was allowed,
the decision to proceed in private to that point was approved.

Sir John Donaldson MR, with whom Griffiths and Slade L.JJ. agreed, reformulated the test which he said was derived from Scott. At p.235 he said:

"It is fundamental to British justice as we know it, and as our
forebears have known it, that the Queen's courts are open to all. And
when I say that they are open to all, I do not limit this to those
who have business in the courts. The judges administer justice in the
Queen's name on behalf of the whole community. No one is more
entitled than a member of the general public to see for himself that
justice is done. Nevertheless it is well settled that occasions can
arise when it becomes the duty of the court to close its doors.
This problem was considered in depth by the House of Lords in Scott
v. Scott [1913] A.C. 417. The guidance which I get from their
Lordships' speeches can be summarised as follows. The general rule
that the courts shall conduct their proceedings in public is but an
aid, albeit a very important aid, to the achievement of the paramount
object of the courts which is to do justice in accordance with the
law. It is only if, in wholly exceptional circumstances, the
presence of the public or public knowledge of the proceedings is
likely to defeat that paramount object that the courts are justified
in proceeding in camera. These circumstances are incapable of
definition. Each application for privacy must be considered on its
merits, but the applicant must satisfy the court that nothing short
of total privacy will enable justice to be done. It is not sufficient
that a public hearing will create embarrassment for some or all of
those concerned. It must be shown that a public hearing is likely to
lead, directly or indirectly, to a denial of justice.
The instant case provides a good example of such exceptional
circumstances. When the matter came before Webster J., all that was
known was that the chief registrar had made orders which would
effectively cause the society to cease to carry on business and that
the society challenged the validity of the orders. Assuming, as
Webster J. has held, that the orders should never have been made,
the society is entitled not only to have them quashed but to continue
in business. However, the judge was told and accepted that if the
society had to publicise the chief registrar's actions in the
process of getting the orders quashed, the loss of public confidence
in the society would be such that whether or not the orders were
quashed, the society would be forced to close. In other words, a
public hearing would effectively have deprived the society of the
relief to which in law and justice it was or might be entitled.
Accordingly, Webster J. was entirely justified in hearing the
society's application in camera.
Before this court the position might be thought to be a little
different. No longer was it simply the case that the registrar had
made the orders and that the society was seeking to have them
quashed. By that time a judge of the High Court had investigated the
matter and had ordered that they be quashed. We therefore invited
argument on why we should not hear the appeal in public or subject to
an order under section 4(2) of the Contempt of Court Act 1981 that
reports of the proceedings be postponed until after we had given
judgment or subject to there being no reference to the identity of
the society.
As a result of substantial argument, we were satisfied that it would
be right to hear the appeal in camera. Building societies, like
banks, are always subject to the risk of abnormal levels of
withdrawal due to a loss of confidence upon the part of their
customers. However, building societies are much more vulnerable
than banks for by the very nature of their business they are
compelled to borrow short and lend long. The society is convinced
that public knowledge that the chief registrar had ever made these
orders would be sufficient to force it to close, even if it were also
known that Webster J. had held that the orders should never have
been made. The society is even convinced that it could not survive
publication of the fact that these proceedings had taken place, even
if were known that it had been successful in this court as well as
before Webster J.. The chief registrar was slightly more optimistic
as to the society's chances of survival, but he agreed that very
serious damage would be suffered by the society and that it might
have to suspend payment for a time."
The views of Viscount Dilhorne in Attorney-General v. Leveller

Magazine were broadly reflected in the same year by statements made by the
Full Federal Court of Australia in R. v. Tait (1979) 46 FLR 386. In a joint
judgment, Brennan, Deane and Gallop JJ. said at pp.401-405:

"In order that a court may accede to an application that it sit in
camera, it must appear either that there is a statutory provision
which enables it to do so, or that the case falls within one of the
"strictly defined exceptions" (as Lord Blanesburgh described them in
McPherson v. McPherson [1936] A.C. 177, at p.200), to the rule that
the proceedings of courts of justice should be conducted "publicly
and in open view" (Scott v. Scott [1913] A.C. 417, at p.441). Apart
from statute, a court has no discretion as to whether it sits in
public or in private. That rule is as clearly established as it is
essential to the preservation of confidence in the judicial system.
In Dickason v. Dickason (1913) 17 C.L.R. 50 at p.51, Barton A.C.J.,
speaking with the concurrence of the other justices of the High
Court, said:
"The matter appears to be concluded by the judgments of the
Lords in Scott v. Scott, the effect of which is that there is
no inherent power in a Court of justice to exclude the public,
inasmuch as one of the normal attributes of a court is
publicity, that is, the admission of the public to attend the
proceedings. Power to exclude may be conferred expressly by
law, but there is no law which empowers us to proceed otherwise
than with the ordinary publicity of a Court of justice."

More recently, in Russell v. Russell (1976) 134 C.L.R. 495, the High
Court has again affirmed that the public conduct of curial
proceedings is a normal attribute of a court, and a provision which
would have required the Supreme Courts of the States to exercise
invested matrimonial jurisdiction in closed court was held invalid.
Gibbs J. said: "It is the ordinary rule of the Supreme Court, as of
the other courts of the nation, that their proceedings shall be
conducted `publicly and in open view' (Scott v. Scott (supra.)).
This rule has the virtue that the proceedings of every court are
fully exposed to public and professional scrutiny and criticism,
without which abuses may flourish undetected. Further, the public
administration of justice tends to maintain confidence in the
integrity and independence of the courts. The fact that courts of law
are held openly and not in secret is an essential aspect of their
character. It distinguishes their activities from those of
administrative officials, for `publicity is the authentic hall-mark
of judicial as distinct from administrative procedure' (McPherson v.
McPherson [1936] A.C. at p.200). To require a court invariably to sit
in closed court is to alter the nature of the court. Of course there
are established exceptions to the general rule that judicial
proceedings shall be conducted in public; and the category of such
exceptions is not closed to the Parliament. The need to maintain
secrecy or confidentiality, or the interests of privacy or delicacy,
may in some cases be thought to render it desirable for a matter, or
part of it, to be held in closed court Russell v. Russell (supra) at
p.520."
A judge cannot modify the common law rule which requires a court to administer justice in public. Apart from the strictly defined exceptions, "parliamentary sanction is required for the exclusion of the public from proceedings" (per Stephen J. in Russell v. Russell (supra) at p.533). In Scott v. Scott the reason for the common law rule and for denying a judicial discretion to modify it was eloquently expressed by Lord Shaw of Dunfermline who recalled Bentham's writings: " `Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.' `The security of securities is publicity'. But amongst historians the grave and enlightened verdict of Hallam, in which he ranks the publicity of judicial proceedings even higher than the rights of Parliament as a guarantee of public security, is not likely to be forgotten: `Civil liberty in this kingdom has two direct guarantees; the open administration of justice according to known laws truly interpreted, and fair constructions of evidence; and the right of Parliament, without let or interruption, to inquire into, and obtain redress of, public grievances. Of these, the first is by far the most indispensable; nor can the subjects of any State be reckoned to enjoy a real freedom, where this condition is not found both in its judicial institutions and in their constant exercise.'
"I myself should be very slow indeed (I shall speak of the exceptions
hereafter) to throw any doubt upon this topic. The right of the
citizen and the working of the Constitution in the sense which I have
described have upon the whole since the fall of the Stuart dynasty
received from the judiciary - and they appear to me still to demand
of it - a constant and most watchful respect. There is no greater
danger of usurpation than that which proceeds little by little, under
cover of rules of procedure, and at the instance of judges
themselves. I must say frankly that I think these encroachments have
taken place by way of judicial procedure in such a way as,
insensibly, at first, but now culminating in this decision most
sensibly, to impair the rights, safety, and freedom of the citizen
and the open administration of the law" [1913] A.C. at pp.477-478.
The Earl of Halsbury was concerned to deny the existence of non-
statutory judicial discretion to sit in camera. He said: "... I wish
to guard myself against the proposition that a judge may bring a case
within the category of enforced secrecy because he thinks that
justice cannot be done unless it is heard in secret. I do not deny
it, because it is impossible to prove what cases might or might not
be brought within that category, but I should require to have brought
before me the concrete case before I could express an opinion upon
it. Your Lordship has said that a mere desire to consider feelings
of delicacy or to exclude from public hearing details which it would
not be desirable to publish is not, in your Lordship's opinion,
enough to prevent a public hearing, which must be insisted on in
accordance with the rule which governs the general procedure in
English Courts of justice, and that to justify an order for hearing
in camera it must be shewn that the paramount object of securing that
justice is done would really be rendered doubtful of attainment.
"The difficulty I have in accepting this as a sufficient exposition
of the law is that the words in which your Lordship has laid down the
rule are of such wide application that individual judges may apply
them in a way that, in my opinion, the law does not warrant.
"I am not venturing to criticize your Lordship's language, which, as
your Lordship understands it, and as I venture to say I myself
understand it, is probably enough to secure the observance of the
rule of public hearing, but what I venture to point out is that it is
not so definite in its application but that an individual judge might
think that, in his view, the paramount object could not be attained
without a secret hearing. Although I am very far from saying that
such a case may not arise, I hesitate to accede to the width of
language, which, as I say, might be applied to what, in my view,
would be an unlawful extension." [1913] A.C. at pp.442-443.
There is, however, an exception to the rule where the exercise of the
court's jurisdiction would be defeated or frustrated if the
proceedings were held in public. Thus, there is power to close the
court to prevent its disruption by rioters (R. v. Governor of Lewes
Prison; Ex parte Doyle [1917] 2 K.B. 254) or to protect a secret
process which is the subject of the litigation. But this exception is
a narrow one, and the suggestion of Earl Loreburn in Scott v. Scott
that it also covers cases where by reason of publicity "parties
entitled to justice would be reasonably deterred from seeking it at
the hands of the court" [1913] A.C. at p.446 did not find acceptance
by the other Lords (cf. Lord Shaw [1913] A.C. at p.484) and has not
been followed since (B. (Orse P.) v. Attorney-General [1967] P. 119,
at pp.123-124). The exception - limited to cases where the
presence of the public would make the securing of justice "doubtful
of attainment" - does not extend to cases where excluding the public
would merely save a party or a witness from suffering a collateral
disadvantage as the result of the publicity of the proceedings in
which he is engaged or in which he is to give evidence.
...
The absence of a statutory power to exclude the public need not prevent the court from adopting other procedures which may give necessary confidentiality to information, while maintaining the public right of presence during the proceedings. Thus, a direction to
conceal the names of witnesses (as in R. v. Socialist Worker Printers
and Publishers Ltd.; Ex parte Attorney-General [1975] Q.B. 63) or the
handing up of a document which is not to be read in public (as in
Andrew v. Raeburn (1874) 9 Ch. App. 522) may provide adequate
confidentiality where confidentiality is necessary, during
proceedings which are open to the public. Even where a court is
vested with a statutory discretion to exclude the public, it would
ordinarily exercise that power only in cases where lesser procedures
are clearly inadequate to give the confidentiality which is seen to
be necessary."
The public nature of court proceedings was also discussed by the

Federal Court in Australian Broadcasting Commission v. Parish (1980) 43 FLR 129; 29 ALR 228, and Tradestock Pty. Ltd. v. TNT (Management) Pty. Ltd. (1983) 50 ALR 461, although both decisions relevantly turned on section 50 of the Federal Court of Australia Act 1976 (Commonwealth), which permits an order forbidding or restricting the publication of particular evidence or the name of a party or a particular witness if it appears to the court "to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth". See also E. v. Australian Red Cross Society (1991) 99 ALR 601.

Recently, there has been extensive discussion of the topic of open

justice in State courts. It has been the subject of reported decisions by
appeal courts in both Queensland and New South Wales as well as unreported
appellate decisions and decisions by single judges in a number of States:
see, for example, Mirror Newspapers Ltd. v. Waller (1985) 1 NSWLR 1; Re A
Former Officer of the Australian Security Intelligence Organisation (1987)
VR 875; and T.K. v. Australian Red Cross Society (1989) 1 WAR 335, in which
the orders made were similar to those which are the subject of the present
appeal. Orders to the same effect have been made in Victoria; see Re a
Proposed Proceeding between "TC" as plaintiff v. Australian Red Cross
Society as defendants (unreported, Young CJ, 4 August, 1989) and P.Q. v.

Australian Red Cross Society (1992) 1 VR 19.

Although such orders have not previously been made in Queensland, the

Full Court discussed the nature of a court's power to limit public knowledge of its proceedings on two occasions in 1991.

In R. v. His Honour Judge Noud, Ex parte McNamara [1991] 2 Qd. R. 86,

Williams J., with whom Demack J. agreed, referred to the subject at some length especially at pp.103-108.

In that case, a judge made orders at the commencement of a criminal

trial effectively prohibiting identification of a witness who was the complainant in relation to charges of official corruption against two police officers. Although the Full Court quashed the orders, a distinction

was drawn:

"Between holding proceedings in camera and holding proceedings in
open court but with directions having the consequence of concealing
the names of witnesses (with or without a further direction limiting
publication of evidence) ...
... a judge faced with the question whether or not to direct that the
name of a witness be withheld must balance the possibility of other
witnesses coming forward if that evidence is given full publicity
against the possibility of the evidence not being available and
therefore justice not being done because of unnecessary media
publication of some sordid facts which are of little value to persons
outside the court room, except that their publication may have some
temporary effect on media ratings." (at p.104)
While that passage suggests the exercise of a judicial discretion

involving the balancing of the circumstances of the particular case, the
following paragraph in the judgment discussed Scott, from which it was said
clearly to emerge "that it is not merely a question of the exercise of
discretion by the trial judge; the exercise of the jurisdiction to give a
direction of the type in question gives rise to a question of principle
which should only be implemented when it is necessary to do so in order to

ensure that justice is done."

The position was then summarised in the following passage from

pp.106-107:

"Thus it appears that the court should only depart from the basic
principle that proceedings take place in public, and without any
limitation thereon, if it is positively established to the court that
without such direction justice could not be done because of the grave
difficulty in having the witnesses come forward in cases of that
type. That will frequently occur where the essential prosecution
witness has a "secret" (to use Lord Widgery's term) which would of
necessity have to be made public if that witness was to give in open
court the evidence without which criminal conduct would go
unpunished. That situation clearly arises where the charge is one of
blackmail, but it will also (perhaps not infrequently) arise in cases
of the type under consideration here. A person is vulnerable to
official corruption if that person has a 'secret" which the official
is able to exploit to his advantage; if the person did not have that
vulnerability then he would not be an appropriate target for the
crime."

Significant aspects of what was said in that case were described as

obiter by a differently constituted Full Court in Rockett v. Smith, ex
parte Smith (O.S.C. No. 30 of 1990; unreported; judgment delivered 21
March, 1991). In the latter case, the Full Court declined to overturn the
decision of a magistrate who had directed that a number of witnesses might
write down their names and addresses on paper to be handed to the
magistrate and use pseudonyms during the hearing, but it was held that the
magistrate had had no power to go further and order that any report made or
published concerning the proceedings should not reveal the names or other
identifying particulars of the witnesses. Reliance for both conclusions
was based upon the decisions of the N.S.W. Court of Appeal in John Fairfax
and Sons Ltd. v. Police Tribunal of N.S.W. (1986) 5 NSWLR 465, and
Attorney-General (NSW) v. Mayas Pty. Ltd. (1988) 14 NSWLR 342, which have
subsequently been re-considered by the New South Wales Court of Appeal in
John Fairfax Group (Receivers and Managers Appointed) v. The Local Court of
New South Wales (unreported judgment delivered 24 December 1991).

Significantly, all judges in Rockett treated the magistrate's

directions, other than the general restraint upon publication of the
witnesses' names, as involving a discretionary judgment on his part with
which an appellate court had only a limited power to interfere.

Since the English Court of Appeal's decision in R. v. Chief Registrar

of Building Societies, there have been at least five reported and two
unreported decisions by the N.S.W. Court of Appeal, including those
referred to in Rockett, in which there has been discussion of a court's
power to exclude or limit public access or the publication of reports in
relation to its proceedings. Although subsection 80(b) of the Supreme
Court Act 1970 (NSW) empowers that court to exclude the public 'where the
presence of the public will defeat the ends of justice', that provision has
been interpreted by reference to the common law. Accordingly, the
sometimes conflicting views which have been expressed in the New South
Wales Court of Appeal provide the most extensive modern discussion of the
principles which are material in the present proceeding.

In David Syme and Co. Ltd. v. General Motors-Holden's Ltd. (1984) 2
NSWLR 294, an application for an interlocutory injunction to restrain the
publication of information claimed to be confidential was heard, without
objection, in closed court. The primary judge granted the plaintiff
interlocutory relief, including the following orders:

"6. ORDER that except for the purpose of a minute of these orders

being settled, passed and entered, or for the purpose of enforcing
these orders, or for the purpose of any application arising out of
any alleged non-compliance with these orders, the same shall not,
without the prior leave of a judge, be disclosed to any person or
persons other than the parties and their respective officers and
legal advisers;

7. DIRECT that the file copy of this judgment be placed in a

sealed envelope, which said envelope shall not be opened except by
the order or direction of a judge."

The defendant appealed and, initially, the plaintiff sought to have

the appeal heard in closed court. However, the application was refused
after it became apparent that the appeal could proceed in open court
without any risk of injustice to either party provided that no reference
was made to details of the information alleged to be confidential. The
Court of Appeal (Street CJ, Hutley AP and Samuels JA) held that the orders
set out above should not have been made in such wide terms.

At p.299, Street CJ. said:
"Courts do, and should continue to, strain to the utmost to hear
proceedings in public. Any tendency to depart from this is to be
resisted unless clearly required by the dictates of justice."

At pp.300-301, he went on:

"So far as concerns the statement of reasons I should have thought
that it would always be possible for them to be formulated in such
general terms as would, in deference to the deeply rooted principle I
have referred to earlier, convey an adequate account of the
litigation and the reasons underlying the orders. Where it is
absolutely necessary that the reasons incorporate confidential
material, it is commonplace for that material to be identified by
some neutral description and to be set out in a document directed to
be sealed up with an appropriate endorsement and placed with the
papers. Incorporation in this way by reference has been found an
effective means of enabling a trial judge to canvass confidential
material adequately while at the same time giving, as he is obliged
to, a public account of the litigation and the reasons for his
orders. Failure to adopt either this or some other course which
would enable such a public account to be given will, in my view,
almost invariably, if not invariably, amount to error on the part of
the trial judge. The extent and the content of the public account
may vary according to the particular case in hand. I repeat, however,
that I find it difficult to conceive any case in which it is
impossible to provide some statement by way of a public account of
the proceedings and the reasons."
...
I turn finally to the non-disclosure of the terms of the order. Here
again, I find it almost inconceivable to contemplate a case in which
there should be a total black-out upon the terms of the order.
Important as it is that proceedings and reasons should be heard and
stated in public, it is even more important that the solemn formality
of a curial order should be capable of publication. To admit to
exceptions to this requirement is a far reaching step. It affects not
merely the individual against whom the order may be made. The public
itself has a right to know what orders are being made by courts and
it is encumbent on judges so to formulate their orders as to give
effect to this right. I conclude, accordingly, that in the present
case the direction that the order be not disclosed was erroneous."
In Raybos Australia Pty. Ltd. v. Jones (1985) 2 NSWLR 47, the

defendant in a proceeding for contempt was a solicitor. The New South Wales Court of Appeal refused his request for an order restraining the disclosure of his name and the name of his firm.

After discussion of the history of open administration of justice and

the general rule as it was stated in Scott and reaffirmed in McPherson v.
McPherson (1936) AC 177 and Russell v. Russell (1976) 134 CLR 495, Kirby P.
referred to the common law's acceptance of certain exceptions and continued
at p.55:

"These legislative developments and changes of court practice
reflect an increased resolve on the part of the Parliament and the
courts to defend the principle of the open administration of justice
against the many, doubtless well-meaning, efforts to erode the
principle because of the suggested operation of competing claims of
privacy, confidentiality, security, delicacy or administrative
efficiency.
...
The principles which support and justify the open doors of our courts
likewise require that what passes in court should be capable of being
reported. The entitlement to report to the public at large what is
seen and heard in open court is a corollary of the access to the
court of those members of the public who choose to attend."
Although doubting whether a court has the power to make an order,

operating outside the court, which suppressed the publication of what was
said in open court, his Honour found it unnecessary to decide that question
because he was of the view that, if the power existed, it should not be
exercised in that case. In the course of giving his reasons for that
opinion, Kirby P. quoted from what was said by Lord Scarman in Harman v.

Secretary of State for the Home Department (1983) 1 AC 280 at 316:

"... the common law by its recognition of the principle of open
justice ensures that the public administration of justice will be
subject to public scrutiny. Such scrutiny serves no purpose unless
it is accompanied by the rights of free speech, ie. the right
publicly to report, to discuss, to comment, to criticise, to impart
and to receive ideas and information on the matters subject to
scrutiny. Justice is done in public so that it may be discussed and
criticised in public." (p.59)
Finally, at pp.59-60, his Honour rejected the harm which could be

caused to individuals by publicity as a sufficient reason for the restraint

which was sought. At p.60 he said:

"Widespread publicity, through the modern media of communications,
may do great harm. Sometimes quite unjustifiable damage can be
inflicted on individuals.
... .
However that may be, a price must be paid for the open
administration, particularly of criminal justice. The alternative, of
secret trials, where important public rights may be in competition
and individual liberty may be at risk is so unacceptable that courts
of our tradition would tend to avoid the consequence."
Samuels JA assumed that the power to make the orders sought existed

and, on that assumption, defined its scope by a reference to subsection 80(b) of the Supreme Court Act 1970 (New South Wales). At pp.61-62, he continued:

"If all these assumptions are made it is then necessary to decide
whether publication, in the usual way, of the names in suit will
defeat the ends of justice: that is to say, whether publication will
defeat the very purpose to which the public conduct of a court's
business is ordinarily deemed essential. The inquiry must start with
the proposition, central to our notions of forensic procedure, that
the courts customarily conduct their business in public in order
that the integrity, fairness and efficiency of the system, and its
administrators, may be maintained by its exposure to public scrutiny.
One corollary is the freedom to publish to the public fair reports
of the court's proceedings. I do not myself consider that much turns
on the fact that the proceedings before us are for contempt of court,
and are thus criminal in character. If it is of particular importance
that criminal proceedings should be heard in public and fully
reported, the reason is not, I think, because they, unlike, or to a
greater extent than, civil proceedings involve the public interest in
the proper administration of justice. All proceedings before all
courts (properly so called) involve that public interest; and it is
that public interest whose requirements inform the whole of the topic
in debate. One cannot put the private interests of citizens in the
balance against this or any other public (that is, the whole
community's interest). The emphatic desirability of public scrutiny
of criminal trials is due essentially to the need to protect the
accused, whose liberty is, or often is, at stake, against prejudice
or unfairness. In any event, in the present case the contempt
alleged is of a rather special kind and the defendant, whose position
must be protected with all the rigorous care which our law extends to
an accused person, is indeed the party moving for the order for
suppression.
In my opinion, assuming the test I have mentioned, it does not matter
whether the proceedings are civil or criminal. The question in either
case must be the same: and in the present case it is whether
publication in the ordinary course of the identity of the defendant
(and of certain of his associates) in the contempt proceedings would
defeat the ends of justice. That is to say, would publication
prevent (or perhaps seriously impede) the fair resolution of those
proceedings according to law, which is what I take the ends of
justice to require and the public interest in its due administration
to demand?
The question must, I consider, be answered no. I can see no basis for
a conclusion that publication will defeat the doing of justice. The
President has pointed out, and I agree, that great material harm can
be done and considerable distress caused to individuals by reports of
their involvement, or alleged involvement, in dubious transactions
giving rise to legal proceedings. It is, to my mind, essentially a
complaint of this kind that informs Mr Jones' argument. But there is
no remedy to be had at common law, and I am not prepared to ascribe
so wide an ambit to the hypothetical power which I find myself
exercising. As I have indicated detriment of the kind postulated is
incapable of satisfying the required test; it does not, to my mind,
destroy the ends of justice in the circumstances of the present case.
"

Priestley JA said at pp.63-64:

"Against the view that the healthiest way of dealing with both civil
and criminal court cases is in open court, two factors must be
recognised as operating. Current legislative and executive opinion
frequently go on a different footing. Judges need not be concerned
about executive opinion, but are bound by statutory statements of
parliamentary views. ...
The other factor is the obligation of courts to do justice in
particular cases. In the past this Court has seen this obligation as
giving courts full power to do whatever is necessary to achieve a
just result in a case before it: see Ex parte Tubman: Re Lucas (1970)
72 SR (NSW) 555 especially at 569; 92 WN 520 esp at 532 and following
per Asprey JA. Coupled with the statement of this power there is
always the warning that it must be used with the most careful
discretion.
So far as concerns those proceedings which are usually regarded as strictly judicial, of which the present case is an example, this Court has two sure sources of power to exclude the public from its proceedings; one is the inherent power just mentioned and the other is the Supreme Court Act 1970, s.80, which empowers the court to conduct its business in the absence of the public where the presence of the public will defeat the ends of justice.
It seems probable to me that the inherent power would enable the court to make orders that evidence and happenings in court in the presence of the public should not be publicised although my own opinion is that a case where it would be both practical and right to make such orders would be of the utmost rarity. However it is not necessary to decide in the present case whether the court's powers extend so far because if the court has the power, this was not a case where, in my opinion, either on my own perhaps too stringent view, or a more orthodox one, it should be exercised.
... . The case has unusual features but only in a sense that many
cases have features special to themselves. There must be few
defendants who like their names published along with the charges
against them; many must feel themselves harmed by the publicity. The
defendant in the present case was not to my mind in a sufficiently
different position from that of the other defendants to make it right
that his case be treated differently. Accordingly I joined in the
decision to refuse his application."
In John Fairfax and Sons Ltd. v. Police Tribunal of New South Wales

(1986) 5 NSWLR 465, an order was made by the Police Tribunal, in the course
of a hearing of departmental charges against a police officer, that the
name of a person alleged to be a police informer who was not a witness in
the proceeding not be published "in reports of these proceedings nor in any
material which would serve to identify him or his place of abode." The New

South Wales Court of Appeal quashed the order.

Mahoney JA considered that the second part of the order, which

restricted the publication of the name of the witness "in any material
which would serve to identify him or his place of abode" was beyond power
and that the remainder of the Police Tribunal's order was substantially
ineffective to achieve its purpose so that the whole order should be

quashed.

In the course of his judgment, his Honour expressed views with

respect to the power of a superior court to control its proceedings. At

pp.471-472 he said:

"A superior court has the power, and the duty, to secure that justice
is done according to the law in respect of those seeking the exercise
of its jurisdiction: see Scott v. Scott [1913] AC 417 at 437 per
Viscount Haldane LC.
...
The power of a court to achieve such a purpose is not, I think, narrowly circumscribed. What it may do is conditioned upon the necessity of the case, not upon matters of mere convenience: Scott v. Scott (at 438). It may, in my opinion, direct that the name be not disclosed to the court; it may direct that it be disclosed to the court but no other; and it may, in relation to the order which has been made, make such order or give such direction as may be necessary to secure that its purpose be achieved by, for example, directing that no publication be made of the name or of information which would disclose the identity of the person in relation to his involvement in the proceedings before the court. The relationship which must exist between the proceedings and the necessity of the case on the one hand and the order made will depend upon the circumstances of the case."
At p.476, McHugh JA, with whom Glass JA agreed, held that, although

the Act by which it was constituted contained no specific power enabling the Police Tribunal to prohibit the publication of evidence taken before it, its order was not necessarily invalid for that reason. While it had no

powers, jurisdictions or authorities other than those authorised by the Act and had none of the powers inherent in the courts of common law, it had the powers which were necessary to enable it to act effectively within the

jurisdiction which it had been granted by the Act. "The source of this
inherent jurisdiction is the implied authority conferred on the judiciary
to uphold, protect and fulfil the judicial function by ensuring that
justice is administered, both in a particular case and as a continuing
process, according to law and in an effective manner: Jacob, `The Inherent
Jurisdiction of the Court', Current Legal Problems (1970) 23 at 27-28."

(p.476).

At pp.476-477, McHugh JA continued:
"The fundamental rule of the common law is that the administration of
justice must take place in open court. A court can only depart from

this rule where its observance would frustrate the administration of
justice or some other public interest for whose protection Parliament
has modified the open justice rule. The principle of open justice
also requires that nothing should be done to discourage the making of
fair and accurate reports of what occurs in the courtroom.
Accordingly, an order of a court prohibiting the publication of
evidence is only valid if it is really necessary to secure the proper
administration of justice in proceedings before it. Moreover, an
order prohibiting publication of evidence must be clear in its terms
and do no more than is necessary to achieve the due administration of
justice. The making of the order must also be reasonably necessary;
and there must be some material before the court upon which it can
reasonably reach the conclusion that it is necessary to make an order
prohibiting publication. Mere belief that the order is necessary is
insufficient. When the court is an inferior court, the order must do
no more than is "necessary to enable it to act effectively within"
its jurisdiction. Courts have no general authority, however, to make
orders binding people in their conduct outside the courtroom.
Judicial power is concerned with the determination of disputes and
the making of orders concerning existing rights, duties and
liabilities of persons involved in proceedings before the courts. An
order made in court is no doubt binding on the parties, the witnesses
and other persons in the courtroom. But an order purporting to
operate as a common rule and to bind people generally is an exercise
of legislative - not judicial - power. Nevertheless, conduct outside
the courtroom which deliberately frustrates the effect of an order
made to enable a court to act effectively within its jurisdiction
may constitute a contempt of court. But the conduct will be a
contempt because the person involved has intentionally interfered
with the proper administration of justice and not because he was
bound by the order itself. I think that the above statement of the
applicable principles is in accordance with the way in which this
branch of the law has developed."

At pp.480-481, his Honour explained why the order had been wrongly made by the Police Tribunal. He said:

"This case is not comparable to a case like R. v. Clement where the
purpose of the order was to protect the integrity of a number of
trials on the one indictment. Nor is the case comparable to cases
like R. v. Socialist Workers; Ex parte Attorney-General and Taylor v.
Attorney-General where the order for anonymity had effect within the
courtroom and the effect of the publications was to frustrate orders
made for the regulation of the courts' business. At the time when the
Tribunal made its order, no suggestion was made that Mr "X" would or
might give evidence. Nor were we told that he had later given
evidence in the proceedings. Ironically, if he had given evidence,
he would apparently have denied that he was an informer.
The order in question was simply designed to protect a person who was
not a party or witness from the perceived effects of evidence given
publicly in the Tribunal. The order was not designed to protect Mr X
as a witness before the Tribunal or to ensure that other evidence
given before the Tribunal was not influenced by the allegation that
Mr X was an informer. It was not designed to prevent the
publication of evidence whose publication would destroy the object of
the proceedings. It was not an order made in pursuance of a
requirement of public policy or of a statutory provision. If the
tribunal had jurisdiction to make this order, it must have
jurisdiction to make an order protecting a stranger from the
detrimental consequences of publishing any evidence given before it.
That would be extending the jurisdiction of an inferior tribunal
beyond anything ever previously suggested. The statements in the
cases to which I have referred deny the power to the superior courts.
It is not possible to grant it to tribunals with limited
jurisdiction."

At p.481, McHugh JA also rejected an argument that the terms of the

Act by which the Police Tribunal was constituted and by which it had power
to exclude the public from its hearings supported the order. His Honour
held that the right to publish a fair and accurate report of proceedings is
a common law right of such significance that an intention to repeal or
amend it would only be attributed to the legislature when the language of
the statute was unmistakably clear. He then continued at pp.481-482

"... the publication of the reports of court proceedings made in good
faith is not an actionable defamation. Without the publication of
the reports of court proceedings, the public would be ignorant of
the workings of the courts whose proceedings would inevitably become
the subject of rumours, misunderstandings, exaggerations and
falsehoods which are so often associated with secret decision making.
The publication of fair and accurate reports of court proceedings is
therefore vital to the proper working of an open and democratic
society and to the maintenance of the public confidence in the
administration of justice."
In Attorney-General for New South Wales v. Mayas Pty. Ltd. (1988) 14

NSWLR 342, the New South Wales Court of Appeal dismissed a proceeding for contempt brought against a reporter who had published the name of a complainant in relation to a sexual offence after a magistrate had made a non-publication order in the course of committal proceedings.

Mahoney JA found that the defendant did not know that the relevant

order had been made and that, on the facts of the case, was not guilty of
contempt irrespective of the validity or effect of the magistrates order.
Nonetheless, he discussed those questions at considerable length at pp.345-

349, where he said:

"There are two basic principles affecting proceedings in courts.
Stated broadly they are: that the hearing of proceedings in a court -
and, I think, of criminal proceedings in particular - should be open
to the public; and that what takes place in those proceedings may be
the subject of a fair and accurate report and of appropriate
discussion. These two principles, while they are related, are
distinct, in their operation and their rationale.
These principles are, of course, not absolute. They are subject to qualifications. In particular, they are subject to, as I shall describe it, the Scott qualification: see Scott v. Scott [1913] AC 417. The basis of the Scott qualification has been discussed many times and it is not necessary for me to detail it. It has been referred to in the High Court: Russell v. Russell (1976) 134 CLR 495 at 520 per Gibbs J; in this Court: David Syme and Co. Ltd. v. General Motors-Holden's Ltd. [1984] 2 NSWLR 294 and Raybos Australia Pty. Ltd. v. Jones (1985) 2 NSWLR 47 at 52 per Kirby P; in the Federal Court of Australia: Australian Broadcasting Corporation v. Parish (1980) 43 FLR 129; 29 ALR 228; and in England in the House of Lords: Attorney-General v. Leveller Magazine Ltd. [1979] AC 440; and in the Privy Council: McPherson v. McPherson [1936] AC 177. Over- simplified, the Scott qualification authorises the court to depart from these principles if it is necessary to do so in order that justice be done in accordance with the law.
The Scott qualification, that is, the considerations on which it is
based, can authorise both in camera and non-publication orders.
Proceedings may be ordered to be held in private and some or all of
the public excluded: this is what was in issue in the McPherson case.
And it may prevent the publication of what took place: this was what
was in issue in the Scott case . A non-publication order may be made
for the purpose of making effective the exclusion of the public: this
was what was discussed, for example, by Earl Loreburn in the Scott
case. But it may also be made for other reasons. Thus, where
proceedings are not held in camera, a non-publication order may be
made to protect an informer: Cain v. Glass (No.2) (1985) 3 NSWLR 230
at 246 et seq and John Fairfax and Sons Ltd. v. Police Tribunal of
New South Wales (1986) 5 NSWLR 465 at 472. Non-publication may, I
think, be ordered in blackmail cases: R v. Socialist Workers Printers
and Publishers Ltd; Ex parte Attorney-General [1975] QB 637. Non-
publication orders may, in my opinion, be made where necessary in the
interests of national security. And, of course, the basis of what
was done in the Attorney-General v. Leveller Magazine Ltd. case lay
in the power of the magistrate in committal proceedings to make non-
publication orders.
As I have indicated, sometimes the making of a non-publication order
is justified because otherwise an in camera order would be
ineffective and the purposes for which it was made would not be
achieved. It is, I think, obvious that in some cases this may be so.
The extent of the restrictions imposed by an in camera order, as
such, is not free from doubt. It might be thought that, at least in
some cases, the reasons why an in camera order can validly be made
should lead the court to conclude that, by implication, the in camera
order also restricts publication . But in England it has been said
that an in camera order does not, as such, restrict the subsequent
publication of what has taken place in the court: see the Scott case
(at 483) and Halsbury's Laws of England, 4th ed., vol. 9, par.20(10)
at 17. If this be so, then it would follow that in some but not all
cases in which it is appropriate that an in camera order may be
made, the considerations which made the in camera order appropriate
would justify the making of a non-publication order: see, eg., the
Scott case (at 447, 451)."
...
It is clear that there are limits upon the circumstances in which a
court may make an in camera or non-publication orders. Thus, for
example, it is not sufficient that a party will be embarrassed by
disclosures in the proceedings or that his business affairs will be
affected: see David Syme and Co. Ltd. v. General Motors-Holden's
Ltd.. There are limits on the extent to which such orders may
operate. Thus, publication may, in a particular case, be restricted
only for a particular time or in relation to particular persons. And
it was, I believe, ordinarily accepted until recently that, in
criminal proceedings for sexual assault, the effect of the publicity
surrounding the proceedings upon the person assaulted was not in
general a reason for either an in camera or a non-publication order.
The extent of such limitations may not be fixed: it may be that "the interests of privacy or delicacy": Russell v. Russell (at 520) per Gibbs J.; may be given more effect now than in previous times. But it has not been argued in the present case that the order which the magistrate made would, under the general law, have been justified by the embarrassment apt to be caused to the lady in question.
...
Whether and to what extent a non-publication order may bind or
otherwise affect non-parties is not a matter which has yet been
finally determined in this State. The conceptual problems involved
were referred to in the Attorney-General v. Leveller Magazine Ltd.
case: [1979] AC 440 at 451 per Lord Diplock; John Fairfax and Sons
Ltd. v. Police Tribunal of New South Wales (at 476-477) and Taylor v.
Attorney-General [1975] 2 NZLR 675. An order made in excess of
inherent jurisdiction will prima facie not bind persons who are not
parties to the proceeding. But it may establish the course of justice
by which the court is to proceed and determine the case before it,
with the result that non-compliance with the order may constitute
such an interference with the administration of justice in the case
that there is a contempt."
At pp.357-358, McHugh JA., with whom Hope JA. agreed, rejected the

proposition that if a court has the power to sit in camera "then there is power to take the lesser course of sitting in open court, but prohibiting publication of parts of the proceedings", a view which had been expressed by Brownie J. in Connors v. Stent (unreported judgment dated 22nd April, 1987). McHugh JA said:

"His Honour relied on what was said by Lord Diplock and Lord Scarman
in Attorney-General v. Leveller Magazine Ltd. (at 451 and 472). But
with great respect these passages do not support the proposition that
Brownie J. expounded. In Attorney-General v. Leveller Magazine Ltd.
magistrates in committal proceedings had ruled that a witness was to
be referred to in Court as "Colonel B" and that his name was to be
written down and only shown to the Court, counsel and the defendants.
In that context Lords Diplock and Scarman expressed the view that,
since the magistrates had the power to sit in camera, they were
entitled to take the lesser course of requiring certain of the
evidence to be heard only by those immediately connected with the
proceedings and not by members of the public whether inside or
outside the Court. However, if a court allows evidence to be given
in open court, in the absence of statutory authority, it has no power
to prevent the publication of that evidence. The cases of R. v.
Socialist Worker Printers and Publishers Ltd.: Ex parte Attorney-
General [1975] QB 637 at 651-652; R. v. Tait and Bartley (1979) 24
ALR 473 at 490; 46 FLR 386 at 405 and Connelly v. Director of Public
Prosecutions [1964] AC 1254 at 1301, to which Brownie J. also
referred do not support any wider proposition."

In United Telecasters Sydney Ltd. v. Hardy (1991) 23 NSWLR 323, it

was held in contempt proceedings brought against the defendant that a
District Court judge had no power to make an order prohibiting the
defendant from telecasting certain material relating to a criminal trial
which was then proceeding before him or to accept an undertaking to similar
effect from the defendant. In the course of his judgment, Samuels AP, with
whom Clarke and Meagher JJA agreed, referred to orders by a court
prohibiting the publication of evidence taken before it in the context of
discussing the nature of the order made by the District Court judge in that
case. At pp.333-334, his Honour said:

"As I have indicated, I do not think it is necessary to muster the
cases involving non-publication orders in support of the contention
that this order was a nullity. The typical non-publication order
seeks to protect the anonymity of a witness, an informer or a party
to the proceedings. Orders have been sought to protect the anonymity
of members of the secret service (Attorney-General v. Leveller
Magazine Ltd.; Taylor v. Attorney-General [1975 2 NZLR 675);
complainants in sexual offence cases (Attorney-General for New South
Wales v. Mayas); police informers (Savvas v. The Queen (1989) 43 A
Crim R 331; John Fairfax and Sons. Ltd. v. Police Tribunal of New
South Wales), and parties to the proceedings (Raybos). Often the
courts have declined to allow such orders which purport to bind the
public at large since they inhibit the fair and accurate reporting of
court proceedings, and because such orders in rem partake more of an
exercise of legislative power than judicial power: John Fairfax and
Sons. Ltd. v. Police Tribunal (at 476-477).
But the present case is not a case where the court has sought to protect Hardy's anonymity. The order was not directed to the world at large, but only to Network TEN. Further, the order was made after the jury had been empanelled and Hardy had been indicted in open court. His identity as the accused had thus already been disclosed in public. Even in the context of non-publication orders, there is authority for the proposition that the court has no power to restrain the publication of evidence, including a name, that has already been disclosed in open court: Attorney-General v. Leveller Magazine Ltd.; Attorney-General for New South Wales v. Mayas (at 358); Raybos (at 55); and John Fairfax and Sons. Ltd. v. District Court of New South Wales (Court of Appeal, 18 August 1988, unreported at 10 per Kirby P.). ... ."

It is proposed to pass over the unreported decision in John Fairfax

and Sons Ltd. v. District Court of New South Wales (judgment 18 August
1988), and to conclude the references to the recent judgments of the New
South Wales Court of Appeal with extracts from John Fairfax Group Pty. Ltd.
(Receives and Managers appointed) v. The Local Court of New South Wales
(unreported judgment delivered 24 December 1991).

In that case, it was held by a majority, Mahoney JA and Hope AJA with

Kirby P. dissenting, that magistrates had, and had properly exercised, the power to make an order that the names of alleged victims of extortion be suppressed and that they be referred to by pseudonyms.

Kirby P. said:
"The normal rule of our courts is that justice is administered in a
court open to the public where the names of the parties are openly
revealed and may be the subject of fair and accurate reports without
fear of prosecution for contempt or action for defamation or other
civil wrong. This rule, which we have inherited from the common law
of England, has been described as an "inveterate" rule of our system
of justice. See Earl Loreburn in Scott v. Scott [1913] AC 417, 445
(HL). In this Court, it was described by McHugh JA as "the
fundamental rule of the common law". See Police Tribunal Case (above)
476.
...
At common law the rule is not absolute, as the Law Lords were at
pains to stress in Scott v. Scott and have done since both in the
Privy Council (see eg. Mcpherson v. McPherson [1936] AC 177; [1936] 1
DLR 321) and in the House of Lords (see eg. Attorney-General v.
Leveller Magazine Limited and Ors. [1979] AC 440). Exceptions have
been allowed by the common law to protect police informers (see
discussion Cain v. Glass (No.2) (1985) 3 NSWLR 230; 246ff; Police
Tribunal case (above), 472); blackmail cases (see eg. R. v. Socialist
Worker Printers and Publishers Ltd. and Anor., Ex parte Attorney-
General [1975] QB 637, 649, 652) and cases involving national
security (see A. v. Hayden (No.2) (1984) 156 CLR 532, 599; cf Re a
Former Officer of the Australian Security Intelligence Organisation
[1987] VR 875,876; Taylor v. Attorney-General [1975] 2 NZLR 675
(CA)). The common justification for these special exceptions is a
reminder that the open administration of justice serves the interests
of society and is not an absolute end in itself. If the very
openness of court proceedings would destroy the attainment of justice
in the particular case (as by vindicating the activities of the
blackmailer) or discourage its attainment in cases generally (as by
frightening off blackmail victims or informers) or would derogate
from even more urgent considerations of public interest (as by
endangering national security) the rule of openness must be modified
to meet the exigencies of the particular case. It is not suggested
that the foregoing rules of the common law, expressed mainly in
decisions of the English Courts, do not represent the common law of
Australia. On the contrary, our courts have followed the common law
principle faithfully. ...
...
It has often been acknowledged that an unfortunate incident of the
open administration of justice is that embarrassing, damaging and
even dangerous facts occasionally come to light. Such considerations
have never been regarded a reason for the closure of courts, or the
issue of suppression orders in their various alternative forms. See
eg. GMH Case (above) 307 Raybos v. Jones (above), 58; R v. Chief
Registrar of Friendly Societies; Ex parte New Cross Building Society
[1984] QB 227, 235 (CCA); R v. Bromfield (above), Malcolm CJ, 22;
Rockett v. Smith per Derrington J, at 7. A significant reason for
adhering to a stringent principle, despite sympathy for those who

cases which are not here applicable. Subject to that qualification, the
legislation has left the common law to continue to operate with respect to
HIV/AIDS sufferers in the courts.

Quite possibly, that has been done as a matter of deliberate policy.

Education appears to be favoured by governments for the purpose of

dispelling discrimination. Note, for example, the recent advertising
campaign aimed at informing the public in relation to HIV/AIDS.
Suppression order are at odds with this approach, and imply that those
afflicted have something shameful to hide. Open justice is more consonant
with not only public confidence in the judicial system but also public
acceptance of the real position concerning the HIV/AIDS disease. Further,
special provisions which provide benefits not generally available, for
example greater than usual privacy, can be a source of resentment and
therefore counter-productive. In upholding and applying the principle of
open justice, the courts complement and assist the process of public
education by underlining the equal rights of those affected by HIV/AIDS and
their entitlement to be afforded equal opportunities and treated equally in
all respects. The public, and individual sufferers, share a common interest
in misinformation and discrimination being dispelled as quickly and
comprehensively as possible.

Not without some reluctance we have therefore concluded that the

sympathy which is inevitably felt for the respondents does not justify the
orders which have been made despite the matters which are forcefully set
out in the judgment of Pincus JA.. However, it is reasonable for the
respondents to expect that the media will exhibit a sensitive consciousness
of their individual and family interests and that extreme care will be

taken to minimise any harm from publicity.

In the circumstances, it is unnecessary to consider other matters

raised on behalf of the appellants or the possibility that the omission to
identify the respondents would lead to conjecture or that others might be

mistakenly believed to be the persons affected.

The appeals should be allowed and the orders set aside after a period
of 28 days to allow the respondents an opportunity to seek special leave to
appeal to the High Court if they are minded to do so. The respondents J. &
R. must pay the taxed costs, including reserved costs, of the proceedings
below and of the appeals.
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Before the Court of Appeal
The President
Mr. Justice Pincus

Mr. Justice Lee

Appeal No. 135 of 1992

BETWEEN:

J.

First Respondent/Plaintiff

AND:

L. & A. SERVICES PTY. LTD.

Appellant/First Defendant

AND:

DRS. J.J. SULLIVAN,
N.J. NICOLAIDES & PARTNERS

Appellants/Second Defendants

AND:

WORKERS' COMPENSATION BOARD OF
QUEENSLAND

Appellant/Respondent

Appeal No. 136 of 1992

BETWEEN:

R.

First Respondent/Plaintiff

AND:

L. & A. SERVICES PTY. LTD.

Appellant/First Defendant

AND:

DRS. J.J. SULLIVAN,
N.J. NICOLAIDES & PARTNERS

Appellants/Second Defendants

AND:

WORKERS' COMPENSATION BOARD OF
QUEENSLAND

Appellant/Respondent

Appeal No. 137 of 1992

BETWEEN:

J.

First Respondent/Plaintiff

AND:

L. & A. SERVICES PTY. LTD.

Appellant/First Defendant

AND:

DRS. J.J. SULLIVAN,
N.J. NICOLAIDES & PARTNERS

Appellants/Second Defendants

AND:

WORKERS' COMPENSATION BOARD OF
QUEENSLAND

Third Respondent/Respondent

Appeal No. 138 of 1992

BETWEEN:

R.

First Respondent/Plaintiff

AND:

L. & A. SERVICES PTY. LTD.

Appellant/First Defendant

AND:

DRS. J.J. SULLIVAN,
N.J. NICOLAIDES & PARTNERS

Appellants/Second Defendants

AND:

WORKERS' COMPENSATION BOARD OF
QUEENSLAND

Third Respondent/Respondent

REASONS FOR JUDGMENT - PRESIDENT AND LEE J.

Delivered the fifteenth day of February, 1993

MINUTE OF ORDER:	Appeals allowed and the orders set aside after a period of twenty-eight days. Respondents J. & R. to pay the taxed costs, including reserved costs, of the proceedings below and of the appeals.
CATCHWORDS:
Counsel:	P. Keane Q.C., with him S. Doyle for Drs. J.J. Sullivan & N.J. Nicolaides M. Forde for L. & A. Services Pty. Ltd. and the Workers' Compensation Board C.K. Chan for J. & R.
Solicitors:	Clayton Utz for Drs. J.J. Sullivan & N.J. Nicolaides

Heiser, Bayly and Mortensen for L. & A. Services
Pty. Ltd. and the Workers' Compensation Board
Chan and Coutts for J. & R.

Hearing Date:

14 July 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 135 of 1992

BETWEEN:

J.

First Respondent/Plaintiff

AND:

L. & A. SERVICES PTY. LTD.

Appellant/First Defendant

AND:

DRS. J.J. SULLIVAN,
N.J. NICOLAIDES & PARTNERS

Appellants/Second Defendants

AND:

WORKERS' COMPENSATION BOARD OF
QUEENSLAND

Appellant/Respondent

Appeal No. 136 of 1992

BETWEEN:

R.

First Respondent/Plaintiff

AND:

L. & A. SERVICES PTY. LTD.

Appellant/First Defendant

AND:

DRS. J.J. SULLIVAN,
N.J. NICOLAIDES & PARTNERS

Appellants/Second Defendants

AND:

WORKERS' COMPENSATION BOARD OF
QUEENSLAND

Appellant/Respondent

Appeal No. 137 of 1992

BETWEEN:

J.

First Respondent/Plaintiff

AND:

L. & A. SERVICES PTY. LTD.

Appellant/First Defendant

AND:

DRS. J.J. SULLIVAN,
N.J. NICOLAIDES & PARTNERS

Appellants/Second Defendants

AND:

WORKERS' COMPENSATION BOARD OF
QUEENSLAND

Third Respondent/Respondent

Appeal No. 138 of 1992

BETWEEN:

R.

First Respondent/Plaintiff

AND:

L. & A. SERVICES PTY. LTD.

Appellant/First Defendant

AND:

DRS. J.J. SULLIVAN,
N.J. NICOLAIDES & PARTNERS

Appellants/Second Defendants

AND:

WORKERS' COMPENSATION BOARD OF
QUEENSLAND

Third Respondent/Respondent

The President
Mr Justice Pincus
Mr Justice Lee
Judgment delivered on the 15th day of February, 1993. Reasons by the President and Lee J. jointly. Pincus JA. separately. Pincus JA. dissenting.
APPEALS ALLOWED AND THE ORDERS SET ASIDE AFTER A PERIOD OF TWENTY-EIGHT DAYS. RESPONDENTS J. & R. TO PAY THE TAXED COSTS, INCLUDING RESERVED COSTS, OF THE PROCEEDINGS BELOW AND OF THE APPEALS.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 135 of 1992

BETWEEN:

J.

First Respondent/Plaintiff

AND:

L. & A. SERVICES PTY. LTD.

Appellant/First Defendant

AND:

DRS. J.J. SULLIVAN,
N.J. NICOLAIDES & PARTNERS

Appellants/Second Defendants

AND:

WORKERS' COMPENSATION BOARD OF
QUEENSLAND

Appellant/Respondent

Appeal No. 136 of 1992

BETWEEN:

R.

First Respondent/Plaintiff

AND:

L. & A. SERVICES PTY. LTD.

Appellant/First Defendant

AND:

DRS. J.J. SULLIVAN,
N.J. NICOLAIDES & PARTNERS

Appellants/Second Defendants

AND:

WORKERS' COMPENSATION BOARD OF
QUEENSLAND

Appellant/Respondent

Appeal No. 137 of 1992

BETWEEN:

J.

First Respondent/Plaintiff

AND:

L. & A. SERVICES PTY. LTD.

Appellant/First Defendant

AND:

DRS. J.J. SULLIVAN,
N.J. NICOLAIDES & PARTNERS

Appellants/Second Defendants

AND:

WORKERS' COMPENSATION BOARD OF
QUEENSLAND

Third Respondent/Respondent
Appeal No. 138 of 1992

BETWEEN:

R.

First Respondent/Plaintiff

AND:

L. & A. SERVICES PTY. LTD.

Appellant/First Defendant

AND:

DRS. J.J. SULLIVAN,
N.J. NICOLAIDES & PARTNERS

Appellants/Second Defendants

AND:

WORKERS' COMPENSATION BOARD OF
QUEENSLAND

Third Respondent/Respondent

JUDGMENT - PINCUS J.A.

Delivered the Fifteenth day of February 1993

I have had the advantage of reading the reasons of the President and Lee J. In view of their content, an explanation of the nature of the case and full exposition of the state of the authorities may be excluded from my own reasons.

The principal consideration in favour of the respondents is that, so
they would argue, unrestricted disclosure of their identities as plaintiffs
would damage them severely in a way which is neither necessary nor just.
The respondents have a case for protection which differentiates them from
the bulk of plaintiffs seeking damages for wrongful acts causing diseases
from which they suffer; the amount of protection they have obtained is
modest. If their allegations are correct, the respondents have innocently
become infected by a virus which produces a disease thought of as abhorrent
by the public, whose attitude has, I think, two sources. One is that the
virus is often transmitted by means which are regarded by a substantial
section of the community as involving moral turpitude: anal intercourse,
especially between homosexuals, or use of infected needles to inject heroin
and the like. Secondly, whether or not acquired in these ways, the disease
may be passed on to others with results which are very likely to be fatal.

Diverse interests are involved: those of the appellants, those of the respondents and the interests of the public at large in the proper administration of justice. The appellants' interests were, according to the arguments advanced on their behalf, adversely affected by the orders made below. That submission related principally, if not wholly, to Order No. 4, which is set out in the reasons of the President and Lee J.; it will be noted that it restricts publication of the proceedings to the extent that "publication might tend to identify the Plaintiff or the name, address or occupation of the Plaintiff". It is difficult to understand in what way the appellants could be disadvantaged by Orders 1 and 2 which, to put it simply, permit the use of a single initial to stand for each of the respondents in the proceedings. Order 4 may be more troublesome to them, but could with a little more attention to drafting perhaps be made to cause the appellants minimal inconvenience.

So far as the respondents are concerned, their interest in obtaining and preserving the orders in question is evident enough. It is true that the exception attached to Order No. 4 may lead to a certain amount of disclosure of their position to friends or associates not already aware of it, but if the orders do not stand and the cases proceed to trial, one would expect that the respondents' being infected by the virus would be publicised on television, radio and in the papers. This would, in my opinion, make their having brought the proceedings substantially more damaging to themselves and to their family than it would be if the orders attacked continued in force. They have two teenage sons.

The other interest identified above, that of the public in the proper administration of justice, has a wider aspect: potential damage to that interest arising from the law not requiring that all proceedings be able to be fully publicised and a narrower one: potential damage arising from the very restrictions in question in these two cases. As to the former, one can see that public confidence in the courts may be shaken to some extent by the fact that certain proceedings are kept secret, wholly or in part; divorce cases and those affected by the Criminal Law (Sexual Offences) Act 1978 (Q.) are important examples. It appears to me that the more such categories are established, the more may members of the public justifiably think that the way in which justice is administered in the community is not open to their scrutiny. It does not seem, however, that lack of public scrutiny of these two cases could be thought, in itself, to affect the public interest significantly.

Types of cases in which orders protecting against publicity have been
made include those in which evidence is likely to identify police informers:
John Fairfax and Sons Ltd. v. Police Tribunal of New South Wales (1986) 5
N.S.W.L.R. 465, Cain v. Glass (No. 2) (1985) 3 N.S.W.L.R. 230 at 246; cases
involving blackmail: R. v. Socialist Worker Printers and Publishers Ltd.,
Ex parte Attorney-General [1975] Q.B. 637; confidential information cases:

Mellor v. Thompson (1885) 31 Ch.D. 55; cases in which a run on a financial

institution is apprehended: R. v. Chief Registrar of Friendly Societies;
Ex parte New Cross Building Society [1984] Q.B. 227; those involving
national security considerations: Attorney-General v. Leveller Magazine
Ltd. [1979] A.C. 440. The better view appears to be that these categories
are not exhaustive; an opinion that they are could be criticised from a
number of points of view. Of those, the most persuasive for present
purposes is that new factual situations can in this field, particularly,
come before the Court which give rise to problems associated with publicity
of a kind not covered by or even analogous to those already considered in
the authorities. Here, as is pointed out in the joint reasons, recent cases
can be found in which similar orders have been made in favour of plaintiffs,
but we are invited not to follow them.

The question whether or not we should do so depends upon what is the proper principle to be applied. There is not wanting authority for the general rule that judges should be very slow in restricting public access to the details of what is going on in courts, but subject to an exception, variously defined. In Scott v. Scott [1913] A.C. 417, the Lord Chancellor said that to justify a hearing in camera one must show "that the paramount object of securing that justice is done would really be rendered doubtful of attainment if the order were not made" (439). In the same case, Earl Loreburn appeared to favour a principle that where the public is sought to be excluded "the underlying principle ... is that the administration of justice would be rendered impracticable by their presence ..." (446). Lord Diplock in Attorney-General v. Leveller Magazine Ltd. [1979] A.C. 440 said that a departure from the general rule is justified "to the extent and to no more than the extent that the court reasonably believes it to be necessary in order to serve the ends of justice" (450). In R. v. Chief Registrar of Friendly Societies; Ex Parte New Cross Building Society (above), the Court said:

"It must be shown that a public hearing is likely to lead, directly or indirectly, to a denial of justice" (235).

See also McHugh J.A. in John Fairfax and Sons Ltd. v. Police Tribunal of New South Wales (above) at 476. Despite the emphasis in these cases on the necessity of proof that the restriction is necessary for the proper administration of justice, the categories of exclusions are not convincingly explained by that means. Their true rationale is ordinarily that damage to some public or private interest arising out of publicity is feared: because a police informer may be endangered, or informers in general discouraged;

because the sins of the victim of blackmail may be exposed; because
national security may be endangered; because a bank may collapse.

It is true that in at least some of these cases the interests of justice are involved in the sense that, unless a restriction were available, the proceedings might not be brought at all. In B. v. Attorney-General [1967] P. 119 at 122-124, the question whether Scott v. Scott laid down that, if a litigant would not sue at all unless he were protected from publicity, then publicity must be restricted, was discussed and answered in the negative. It does not appear that the judges who have based the exception on enabling justice to be done and the like have in mind only or mainly the problem of the deterred complainant or plaintiff, nor is that consideration dominant in the formulation put forward by McHugh J.A. (as his Honour then was) in John Fairfax and Sons Ltd. v. Police Tribunal of New South Wales (above) at 477:

"... really necessary to secure the proper administration of justice in proceedings before it".

In my respectful opinion, the cases can be explained on the basis that in the absence of a restriction on publicity, damage will be caused to the public interest, to a class of persons (for example, the depositors in a bank) or to individuals to such an extent and of such a kind as absolutely to require some relief, in the interests of justice. These are the "unacceptable" consequences referred to in John Fairfax Group Pty. Ltd. v. The Local Court of New South Wales (24 December 1991, unreported) by Mahoney J.A. There is a balancing exercise involved, with an initial heavy weighting in favour of publicity - an exercise involving considerations of fairness. In the present case the balance falls, as to the whole of the orders, rather on the side of the respondents. With respect to Orders Nos. 1 and 2, it appears to me plainly to be so; as to Order No. 4, although the competing considerations are closer in weight, in my view the order made was justified.

It is necessary to make two other remarks. The first is that in reaching the conclusion just set out, I have been influenced by the fact that a number of similar orders, referred to in the reasons of Thomas J., have been made in other jurisdictions; one might almost say that a practice has developed of granting such orders in respect of those who have acquired HIV in circumstances where no fault can possibly be attributed to them. The second point is that the language of Order No. 4, which was the subject of some general criticism during the hearing, may well be capable of improvement, by adding qualifications or at least more precision. I would not, however, have altered it since no specific proposal for a change in its terms was put forward at the hearing before us; it was simply argued that the order should be set aside. Further, the orders are interlocutory. They may be varied on application to a single judge, if particular aspects of their operation are found to cause inconvenience or thought likely to do so.

I would dismiss the appeals with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Before the Court of Appeal
The President
Mr. Justice Pincus

Mr. Justice Lee

Appeal No. 135 of 1992

BETWEEN:

J.

First Respondent/Plaintiff

AND:

L. & A. SERVICES PTY. LTD.

Appellant/First Defendant

AND:

DRS. J.J. SULLIVAN,
N.J. NICOLAIDES & PARTNERS

Appellants/Second Defendants

AND:

WORKERS' COMPENSATION BOARD OF
QUEENSLAND

Appellant/Respondent

Appeal No. 136 of 1992

BETWEEN:

R.

First Respondent/Plaintiff

AND:

L. & A. SERVICES PTY. LTD.

Appellant/First Defendant

AND:

DRS. J.J. SULLIVAN,
N.J. NICOLAIDES & PARTNERS

Appellants/Second Defendants

AND:

WORKERS' COMPENSATION BOARD OF
QUEENSLAND

Appellant/Respondent

Appeal No. 137 of 1992

BETWEEN:

J.

First Respondent/Plaintiff

AND:

L. & A. SERVICES PTY. LTD.

Appellant/First Defendant

AND:

DRS. J.J. SULLIVAN,
N.J. NICOLAIDES & PARTNERS

Appellants/Second Defendants

AND:

WORKERS' COMPENSATION BOARD OF
QUEENSLAND

Third Respondent/Respondent

Appeal No. 138 of 1992

BETWEEN:

R.

First Respondent/Plaintiff

AND:

L. & A. SERVICES PTY. LTD.

Appellant/First Defendant

AND:

DRS. J.J. SULLIVAN,
N.J. NICOLAIDES & PARTNERS

Appellants/Second Defendants

AND:

WORKERS' COMPENSATION BOARD OF
QUEENSLAND

Third Respondent/Respondent

JUDGMENT - PINCUS J.A.

Delivered the Fifteenth day of February 1993

Counsel:	P. Keane Q.C., with him S. Doyle for Drs. J.J. Sullivan & N.J. Nicolaides M. Forde for L. & A. Services Pty. Ltd. and the Workers' Compensation Board C.K. Chan for J. & R.
Solicitors:	Clayton Utz for Drs. J.J. Sullivan & N.J. Nicolaides

Heiser, Bayly and Mortensen for L. & A. Services
Pty. Ltd. and the Workers' Compensation Board
Chan and Coutts for J. & R.

Hearing Date(s): 14 July 1992
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 135 of 1992

BETWEEN:

J.

First Respondent/Plaintiff

AND:

L. & A. SERVICES PTY. LTD.

Appellant/First Defendant

AND:

DRS. J.J. SULLIVAN,
N.J. NICOLAIDES & PARTNERS

Appellants/Second Defendants

AND:

WORKERS' COMPENSATION BOARD OF
QUEENSLAND

Appellant/Respondent

Appeal No. 136 of 1992

BETWEEN:

R.

First Respondent/Plaintiff

AND:

L. & A. SERVICES PTY. LTD.

Appellant/First Defendant

AND:

DRS. J.J. SULLIVAN,
N.J. NICOLAIDES & PARTNERS

Appellants/Second Defendants

AND:

WORKERS' COMPENSATION BOARD OF
QUEENSLAND

Appellant/Respondent

Appeal No. 137 of 1992

BETWEEN:

J.

First Respondent/Plaintiff

AND:

L. & A. SERVICES PTY. LTD.

Appellant/First Defendant

AND:

DRS. J.J. SULLIVAN,
N.J. NICOLAIDES & PARTNERS

Appellants/Second Defendants

AND:

WORKERS' COMPENSATION BOARD OF
QUEENSLAND

Third Respondent/Respondent
Appeal No. 138 of 1992

BETWEEN:

R.

First Respondent/Plaintiff

AND:

L. & A. SERVICES PTY. LTD.

Appellant/First Defendant

AND:

DRS. J.J. SULLIVAN,
N.J. NICOLAIDES & PARTNERS

Appellants/Second Defendants

AND:

WORKERS' COMPENSATION BOARD OF
QUEENSLAND

Third Respondent/Respondent

_______________________________________________
The President
Mr. Justice Pincus
Mr. Justice Lee

_______________________________________________
Judgment delivered on 15th February, 1993.
Reasons for judgment of the President and Lee J. jointly
and Pincus J.A. dissenting.
_______________________________________________
APPEALS ALLOWED.
ORDERS MADE BELOW SET ASIDE.
APPLICANTS TO PAY TAXED COSTS, INCLUDING RESERVED COSTS,
OF PROCEEDINGS BELOW AND OF THIS APPEAL.
_______________________________________________

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Citations

J v L & A Services Pty Ltd (No 2) [1993] QCA 12

Most Recent Citation

Dovedeen Pty Ltd & Anor v GK [2013] QCA 116

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Statutory Material Cited

0

R v Brewer [2004] ACTCA 10

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Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc [2002] FCA 860

"8.	There is a considerable amount of hysteria surrounding the Human Immuno Deficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS).
9.	I verily believe that media coverage will be attracted to the proposed litigation.
10.	If the orders sought by the Claimants are made the public may gain the false impression that the Claimant is a member of the public who has become HIV positive as a result of having blood taken by the partnership or the company.
11.	I am concerned that the hysteria surrounding the Virus and related illness is such that if the identity of the Claimants is not disclosed at the interlocutory stages of the proceedings (and before the full facts are known and can be tested and explained) the general public will, as a consequence of the false impression to which I have referred, be fearful and refrain from using the services of the company and partnership for blood collection and testing.
12.	Further, the general public may be fearful and refrain from supplying blood tested in the fear (and I believe false belief) that there is a risk of infection through testing and I verily believe that such would be against the public interest. ...".

[1993] QCA 12

15/02/1993