John Fairfax Publications Pty Ltd v Ryde Local Court

[2005] NSWCA 101

Reported Decision: 152 A Crim R 527
62 NSWLR 512

Court of Appeal

CITATION:	John Fairfax Publications Pty Ltd & 2 Ors v Ryde Local Court & 3 Ors [2005] NSWCA 101 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	2 March 2005
JUDGMENT DATE:	11 April 2005
JUDGMENT OF:	Spigelman CJ at 1; Mason P at 100; Beazley JA at 101
DECISION:	1. Application dismissed.; 2. Claimant to pay the Opponents' costs.

CATCHWORDS:	COURT DOCUMENTS - Access for non-parties - Whether a common law right - Whether documents before the court - Principle of open justice - Whether onus upon applicant - Relevance of the fact that document may contain untested and hearsay allegations - Relevance of private rights - COURTS AND TRIBUNALS - Local Court - Whether Local Court has power to grant access to court documents in matters arising under Part 15A of the Crimes Act 1900 - Whether power to grant access to court documents to non-parties in such matters is necessary - APPREHENDED VIOLENCE - Part 15A Crimes Act 1900 - Consent Orders under s562BA - Whether content of complaint irrelevant to judicial function - Whether court has discretion to refuse to make consent order - APPREHENDED VIOLENCE - Part 15A Crimes Act 1900 - Orders pursuant to s562NA to close court - Whether court should consider less extreme measures - COMMONWEALTH CONSTITUTION - Implied freedom of political communication - Whether freedom requires access to court documents - COMMONWEALTH CONSTITUTION - Institutional integrity of courts exercising Federal jurisdiction - Whether refusal of access to court documents incompatible
LEGISLATION CITED:	Crimes Act 1900: Part 15A; s562AC, s562BA, s562NA Criminal Procedure Act 1986: s314 Director of Public Prosecutions Act 1986: s20A District Court Act 1973 Interpretation Act 1987: s11 Judiciary Act 1903 (Cth) Local Courts (Criminal and Applications Procedure) Rule 2003: Pt 9 cl 62(2)(a) Local Courts Act 1982: Part 6; s4, s36(1)(c) Supreme Court Practice Note 97
CASES CITED:	Attorney-General v Leveller Magazine Ltd [1979] AC 440 Attorney-General v Walker (1849) 3 Ex 242; 154 ER 833 Baker v The Queen (2004) 78 ALJR 1483 Cunningham v The Scotsman Publications Ltd [1987] SLT 698 Dobson v Hastings [1992] Ch 394 Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 Fardon v Attorney-General (Qld) (2004) 78 ALJR 1519 Grassby v The Queen (1989) 168 CLR 1 John Fairfax & Sons Pty Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465 John Fairfax Publications Pty Ltd v District Court (NSW) [2004] NSWCA 324; 50 ACSR 380 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Mulholland v Australian Electoral Commission (2004) 78 ALJR 1279 Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 R Lucas & Son (Nelson Mail) Ltd v O'Brien [1978] 2 NZLR 289 R v Clerk of Petty Sessions; Ex parte Davies Brothers Ltd (Unreported, Supreme Court of Tasmania, Slicer J, 19 November 1998) Roads and Traffic Authority (NSW) v Hayek [2004] NSWSC 575; 41 MVR 47 Russell v Russell (1976) 134 CLR 495 Scott v Scott [1913] AC 417 Smith v Harris [1996] 2 VR 335 State Drug Commission of NSW v Chapman (1987) 12 NSWLR 447 TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 Titelius v Public Service Appeal Board (1999) 21 WAR 201
PARTIES:	John Fairfax Publication Pty Ltd (First Claimant) Seven Network Ltd (Second Claimant) Nationwide News Pty Ltd (Third Claimant) Ryde Local Court (First Opponent) Downing Centre Local Court (Second Opponent) NSW Director of Public Prosecutions (Third Opponent) Patricia June O'Shane (Fourth Opponent)
FILE NUMBER(S):	CA 40894 of 2004
COUNSEL:	S Rares SC / D Sibtain / K Morgan (Claimants) J Gleeson SC / S J Stanton (Fourth Opponent) M G Sexton SC / J K Kirk (Attorney General intervening)
SOLICITORS:	Freehills (Claimants) I V Knight, Crown Solicitor (First and Second Opponents) Office of the Director of Public Prosecutions (NSW) (Third Opponent) Aitkin McLachlan Thorpe (Fourth Opponent)

LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	Ryde Local Court 27713/04
LOWER COURT JUDICIAL OFFICER:	Syme DCM, McIntosh LCM

- 1 -

CA 40894/04

SPIGELMAN CJ
MASON P
BEAZLEY JA

Monday 11 April 2005

JOHN FAIRFAX PUBLICATIONS PTY LIMITED & 2 ORS v RYDE LOCAL COURT & 3 ORS

Facts
Ms Patricia O’Shane, the Fourth Opponent in this matter, was the object of an interim Apprehended Domestic Violence Order (“ADVO”), later made final by consent. The Claimants are media organisations. They seek access to court records relating to the ADVO proceedings. The Claimants seek prerogative and declaratory relief in relation to two rulings of the Local Court.

The first decision challenged was that of Syme DCM on 1 October 2004 to refuse the Claimants’ application for access to documents relating to the ADVO proceedings, in particular the complaint. The Claimants asserted that the decision violated principles of open justice on the basis that the complaint had been before the magistrate who made the interim ADVO, and was the basis upon which the interim order was made. The interim ADVO was made by consent and without admissions, in accordance with s562BA of the Crimes Act 1900. The Claimants asserted that the Local Court had no power to refuse access to such an “originating process”.

Secondly, the Claimants challenged an order made by McIntosh LCM to close the court during a hearing on 8 October 2004. At this hearing orders were sought making the interim ADVO final, and extending its application in respect of other persons, one of whom was below the age of 16. The Magistrate closed the Court pursuant to s562NA of the Crimes Act 1900 which applies when children are involved. The Claimants asserted that the Magistrate fell into jurisdictional error by so doing or by failing to exercise the power to “otherwise order” that the proceedings be held in public.

The Claimants raised constitutional issues, saying that both decisions violated the implied freedom of political communication, and that restrictions on access to court documents and transcripts were incompatible with the functions of a court exercising federal jurisdiction.

Held
1 Open Justice
(a) Open justice is a principle rather than a right. [29], [100], [101]

(b) There is no common law right to obtain access to a document filed in proceedings and held as part of a court record. [31], [100], [101]

R Lucas & Son (Nelson Mail) Ltd v O’Brien [1978] 2 NZLR 289 ; Dobson v Hastings [1992] Ch 394; Smith v Harris [1996] 2 VR 335; R v Clerk of Petty Sessions; Ex parte Davies Brothers Ltd (Unreported, Supreme Court of Tasmania, Slicer J, 19 November 1998); Titelius v Public Service Appeal Board (1999) 21 WAR 201 followed.

2 Power of the Local Court to grant access to documents.
(a) The Local Court has no express statutory power to allow access to court documents. Any such power must be implied. Different considerations apply to the process of implication in the case of parties and non-parties. [35]-[37], [100], [101]

(b) The Local Court has no power to grant access to Court documents to non-parties in matters arising under Part 15A of the Crimes Act 1900. [48], [100], [101]

Grassby v The Queen (1989) 168 CLR 1; John Fairfax Publications Pty Ltd v District Court (NSW) [2004] NSWCA 324; Scott v Scott [1913] AC 417; Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; Attorney-General v Walker (1849) 3 Ex 242; 154 ER 833; Roads and Traffic Authority (NSW) v Hayek [2004] NSWSC 575 followed.

Attorney-General v Leveller Magazine Ltd [1979] AC 440; John Fairfax & Sons Pty Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465 ; Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 referred to.

3 The decision of Syme DCM, assuming power to order access existed.
(a) Syme DCM was correct in placing the burden upon the Claimants of establishing that access was necessary in the interests of justice, or for the proper operation of Part 15A of the Crimes Act 1900. [51], [100], [101]

(b) In the context of a consent order under s562BA, particularly an interim order, nothing turns on the content of a complaint. All that the Court must be satisfied of is the fact of an AVO complaint and the fact of consent. The content of the complaint is irrelevant. Accordingly, the purposes to be served by the principle of open justice were fully and completely served by the disclosure of the fact of the complaint, the fact of the consent, and the terms of the order. [55], [70], [100], [101]

R v Clerk of Petty Sessions; Ex parte Davies Brothers Ltd (Unreported, Supreme Court of Tasmania, Slicer J, 19 November 1998); Cunningham v The Scotsman Publications Ltd [1987] SLT 698; Smith v Harris [1996] 2 VR 335 applied.

Attorney-General v Leveller Magazine Ltd [1979] AC 440; Russell v Russell (1976) 134 CLR 495 referred to.

(c) The fact that the allegations contained in the complaint were untested and possibly hearsay was a relevant consideration. [72], [100], [101]

(d) Syme DCM was entitled to give weight to the private rights of the Fourth Opponent. [78], [100], [101]

Smith v Harris [1996] 2 VR 335; TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 referred to.

(e) There was no error in Syme DCM’s reasons that would entitle this Court to intervene in a supervisory and not appellate jurisdiction. [71], [100], [101]

4 The Decision of McIntosh LCM
(a) Section 562NA of the Crimes Act 1900 operates with its own force and requires proceedings in relation to an order for protection of a child under the age of 16 years to be held in the absence of the public. The possibility of “less extreme measures” is irrelevant in the context of a statutory requirement that proceedings occur in the absence of the public, subject to the court directing to the contrary. [83]-[84], [100], [101]

(b) McIntosh LCM committed no jurisdictional error. [85], [100], [101]

(c) The transcript reveals that McIntosh LCM first turned his mind to making the consent order, and only after having so decided did he close the Court. [91], [100], [101]

(d) It would have been desirable for McIntosh LCM to have made the order in public, suppressing the name of the child and of any person whose identity could identify the child. However, the orders have in fact been made public. [94], [100], [101]

5 Constitutional Issues
(a) The implied constitutional freedom of communication is a negative principle which creates an immunity rather than a freestanding right. There must be a burden on a freedom that exists independently of law. There is none here. [96], [100], [101]

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Mulholland v Australian Electoral Commission (2004) 78 ALJR 1279 followed.

Titelius v Public Service Appeal Board (1999) 21 WAR 201 referred to.

(b) While it is true that the common law must conform with the Commonwealth Constitution , there is no rule that the common law must be developed to create new rights where none existed. [97], [100], [101]

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 distinguished.

(c) There is no incompatibility between refusal of access and the exercise of judicial power. Only the most intrusive legislative intervention into open justice could give rise to an issue of the institutional integrity of the courts. There is none here. [98], [100], [101]

Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; Baker v The Queen (2004) 78 ALJR 1483; Fardon v Attorney-General (Qld) (2004) 78 ALJR 1519 followed.

Orders
1 Application dismissed.
2 The Claimant to pay the Opponents’ costs.

CA 40894/04

SPIGELMAN CJ
MASON P
BEAZLEY JA

Monday 11 April 2005

JOHN FAIRFAX PUBLICATIONS PTY LIMITED & 2 ORS v RYDE LOCAL COURT & 3 ORS

Judgment

1 SPIGELMAN CJ: This is an application for prerogative and declaratory relief in relation to two rulings of the Local Court:

· A decision by Deputy Chief Magistrate Syme to refuse the Claimants’ application for access to documents in certain Local Court proceedings; and

· An order by Magistrate McIntosh to hear proceedings in closed court.

2 The Claimants raised certain constitutional issues. As a result the Attorney General for NSW intervened pursuant to s78A of the Judiciary Act 1903 (Cth).

Background Facts

3 The Fourth Opponent, Ms Patricia O’Shane, a Magistrate, was the object of an interim Apprehended Domestic Violence Order (“ADVO”), later made final by consent. The Claimants in this matter are print and television media organisations. They seek access to court documents relating to the ADVO proceedings against the Fourth Opponent. The legislative scheme for such orders is contained in Pt 15A of the Crimes Act 1900.

4 On 19 September 2004 a telephone interim ADVO was obtained against the Fourth Opponent in respect of Mr Allen J Coles. The return of the ADVO came before Magistrate Keogh on 24 September 2004, in conjunction with criminal assault proceedings in which the Fourth Opponent was also the defendant. The Director of Public Prosecutions (NSW) (“DPP”) appeared for the informant in the assault proceedings and for the complainant in the ADVO proceedings, pursuant to s20A of the Director of Public Prosecutions Act 1986.

5 At the hearing on 24 September 2004, Magistrate Keogh continued the interim ADVO by consent and without admissions, made orders in relation to the assault proceedings, and adjourned both proceedings to 9 November 2004.

6 Later that day, an employee of one of the Claimants sought access in the Local Court registry to the originating documentation for both the assault proceedings and the ADVO proceedings. Access was denied in relation to the ADVO proceedings but granted in relation to the assault proceedings. The latter were covered by the express provisions of s314 of the Criminal Procedure Act 1986.

7 The same day, the Claimants made an application under Pt 9 cl 62(2)(a) of the Local Courts (Criminal and Applications Procedure) Rule 2003 (the “Procedure Rule”) and also “under the general law”, for an order that they “be granted access to all documents contained on the court record in AVO proceedings against Patricia June O’Shane” (AB 8). Subsequently, the Claimants acknowledged that Pt 9 cl 62 of the Procedure Rule did not apply to a complaint under Pt 15A of the Crimes Act 1900.

8 The Notice of Listing of the Application Notice described the Claimant’s application in the following terms:

“An application for an order that the applicants be granted access to all documents contained on the court record in respect of Ryde Local Court Proceedings no. 27713/04 [the ADVO proceedings] and 27959/04 [the criminal assault proceedings], including, without limitation, the originating process in Ryde Local Court proceedings 27713/04 together with a medical certificate tendered in Court on 24 September 2004.” (AB 22)

The Hearing before Syme DCM

9 The Claimant’s application for access to the court file was heard by Syme DCM on 1 October 2004. Following argument, her Honour dismissed the application (AB 238-244). Her Honour said:

“Before the Court is an application for an order that the applicants who I note now are, John Fairfax Publications Limited, Seven Network Limited and Nationwide News Limited, be granted access to all documents contained on the court record in Ryde Local Court proceedings numbered in the application together with a medical certificate tendered to court on that day. It should be noted that the application for access to the medical certificate has been, quite rightly in my view, withdrawn.
It should be noted that access has been sought and granted in criminal proceedings against the same defendant and that application was presumably made under s 314 of the Criminal Procedure Act . S 314 of the Criminal Procedure Act does not, it is conceded by the applicant, apply to the present application. For the record I will just note that s 314 concerns media access to court documents and refers specifically to court documents relating to criminal proceedings.”

10 Her Honour also said:

“In the absence of any statutory power to entertain the application the applicants seek to rely on the implied power of the Court to regulate its own process and proceedings and in doing so to have regard to the important principles of openness and transparency in the exercise of the powers and the duties of the Court. The applicant has developed a strong argument in support of the implied power of the Court to grant public access to its documents. A fundamental rule with which the respondent does not fundamentally disagree is that the administration of justice must take place in open court.
The applicants have relied upon a line of authorities from Scott v Scott through to the case of John Fairfax Limited v the District Court to support the proposition of the overwhelming significance and importance of exposing judicial proceedings to the public and by natural extension to the media. I accept those arguments and acknowledge that even when embarrassing, damaging or even dangerous facts come to light the principle of the courts being open to public scrutiny in the exercise of their powers and duties is fundamental to the administration of justice and importantly public confidence in the judicial process.
I find that the Court does have an implied power to entertain the present application, that is, for access to court records and proceedings. The question as to how the Court’s discretion is to be exercised is more complex. Access in the current application is sought to an initiating application upon which it is said orders were made by consent on 24 September this year. Assuming, as I have, that I have power to grant the application, the Court’s discretion would need to be exercised in conformity with the proper principles bearing in mind that such access could cause harm to individuals.
The allegations which may be made at the commencement of proceedings such as this are often untested allegations. They are frequently made on an unsworn basis. Where a complaint is commenced, as it was in this case, by way of a telephone interim order the allegations are of a hearsay nature. If access to those documents is granted and publication occurs it may be that the person against whom the allegations are made would be without protections that are normally provided and afforded against defamatory statements.
As to the nature of proceedings that are the subject of this application, those proceedings that are made under Pt 15A of the Crimes Act and they are civil in nature and I refer in general to the case of Bivano v Natoli (1998) NSWLR. The objects of Pt 15 are contained in s 562AC of the Crimes Act . That is an important section because it will inform in part how I deal with this application. (S 562AC(4))”

11 Her Honour set out s562AC and s562BA of the Act outlining the objects of Div 1A and conferring power to make orders by consent. I will set out these sections below. Her Honour drew particular attention to the fact that the order made by Magistrate Keogh was an interim order and, accordingly, by force of s563BA(3) no hearing could be conducted. Her Honour also emphasised that in the case of a consent order, the Court had not been obliged to satisfy itself of the usual requirements for making an ADVO.

12 Her Honour said:

“In relation to the current application before the Court the burden is on the applicant to show that it is necessary in the interests of justice that the public and therefore the media should have the ability to have access to and therefore publish the untested hearsay allegations which have not been used by the Court in any formal sense. By that I mean because the order was made under 562BA the Court did not have to independently satisfy itself of anything other than the fact that the interim order was being made by consent.

The present application for access to the AVO complaint should not be confused with any application of cases that are concerned with non-publication proceedings. It is clear from exhibit 3 that there has been access to the transcript and access to the Court proceedings in that the transcript of those proceedings is before this Court.
This application should also not be confused with cases concerning whether an application should be heard in an open or closed court. Clearly the application before Ryde Court was an open court.”

13 Her Honour referred to Supreme Court Practice Note 97:

“The relevant part of [Practice Note 97] refers to access to material in Supreme Court proceedings. Rule 2 states:
‘Access will normally be granted to non-parties in respect of (a) pleadings and judgments in proceedings that have been concluded except insofar as an order has been made that they or portions of them be kept confidential (b) documents that record what was said or done in open court (c) material that was admitted into evidence and (d) information that would have been heard or seen by any person present in open court.’
The relevance of that particular practice note with respect to this case is that the document to which access is sought is not a document that was admitted into evidence. It is not a document that can be referred to by way of a pleading or judgment in proceedings. The proceedings in the present case have certainly apparently not been concluded.”

14 Her Honour concluded:

“The public will have the right (subject to any application the Court may entertain with respect to publication at a later time) to have full access to court evidence upon which the Court may rely or be able to make a finding when the matter comes to hearing. To allow access in the current circumstances of a document which presumably contains untested, possibly unsworn and possibly hearsay allegations, is not going to in my view assist in the issue of open and accountable access to administration of justice in this particular case. To allow access prematurely to those documents is not going to assist in the public confidence in the administration of justice.
The only document now sought to have access to is one which the Court has not been required to rely on in the exercise of its power or duty to make any order. The applicants have not been able to satisfy me that the basic necessity, that is, as to why it is necessary for the proper operation of the Court or pt 15A of the Act for the public to know the details of the allegations that may have been made before the Court but may never be made in open court. If those allegations are ultimately made in open court then I would imagine proper reportage would then be possible.
For those reasons I do not propose to accede to the applications that are currently before the Court.”

15 The Claimants challenge this decision and seek prerogative relief in the form of a writ of certiorari quashing the order of Syme DCJ, and a writ of mandamus compelling the Local Court to grant the Claimants access to the complaint and summons filed in relation to the ADVO proceedings. Further, the Claimants seek a declaration that they are entitled to access to the complaint and summons.

The Hearing before McIntosh LCM

16 The criminal assault proceedings and ADVO proceedings came before McIntosh LCM on 8 October 2004. On that occasion, the DPP sought leave to withdraw the criminal assault charge. Leave was granted (AB 245 I-T).

17 Two matters in relation to the ADVO arose at this hearing. First, an application was made, and granted, for a final ADVO to be made in respect of Mr Coles against the Fourth Opponent in the same terms as the interim order. The final order was made by consent and without admissions. Secondly, an order was sought extending the protection of the ADVO to three other persons. Counsel for the Fourth Opponent asked that the Court be closed under s562NA of the Crimes Act 1900 on the basis that one of the persons to which the extension application related was under the age of 16. McIntosh LCM ordered that the Court be closed.

18 At the conclusion of the hearing, his Honour made a final ADVO in relation to Mr Coles, Ms Heather Armstrong and two other persons, in the terms sought. The final ADVO is public and was made available to the Claimants, with the names of two persons to whom it relates masked.

19 The Claimants challenge what they characterise as McIntosh LCM’s “decision” to close the Court, and seek access to the transcript of the closed segment of the hearing. The Claimants seek prerogative relief in the nature of a writ of certiorari quashing the “decision” of McIntosh LCM to close the court, and a writ of prohibition directed to the Ryde Local Court and the Downing Centre Local Court prohibiting the court from acting upon, giving effect to, or enforcing the 8 October order. Further, the Claimants seek an order that they be given access to the transcript of, and any reasons for judgment arising from, the proceedings of 8 October 2004, and an order that they have access to any documents tendered or otherwise before the Ryde Local Court in the proceedings on 8 October 2004. Alternatively, the Claimants seek a declaration that Ryde Local Court acted beyond its jurisdiction in the proceedings on 8 October 2004 by failing to make an order pursuant to s562NA that the proceedings be heard in open court on that day.

AVO Procedures

20 The legislative scheme for apprehended violence orders serves a range of purposes which are quite distinct from the traditional criminal or quasi-criminal jurisdiction of the Local Court. The legislative scheme is directed to the protection of the community in a direct and immediate sense, rather than through mechanisms such as deterrence. Individuals can obtain protection against actual or threatened acts of personal violence, stalking intimidation and harassment. Apprehended Violence Orders constitute the primary means in this State of asserting the fundamental right to freedom from fear. The objects served by such orders are quite distinct from those that are served by civil adversarial proceedings or proceedings in which an arm of the State seeks to enforce the criminal law.

21 The Act makes parallel but separate provision for the making of orders in domestic, as defined, and other situations, referred to as an Apprehended Domestic Violence Order (“ADVO”) and an Apprehended Person Violence Order (“APVO”). (Respectively, Div 1A and Div 1B.) In each case the Court is empowered to make an order, on complaint, if it is satisfied that a person “has reasonable grounds to fear and in fact fears” personal violence, harassment, intimidation or stalking. (Respectively s562AE and s562AI.) The sections of particular significance in the present case, relating to interim orders (s562BB) and consent orders (s562BA), apply to both an ADVO and an APVO.

22 Section 562AC of the Crimes Act outlines the objectives of the ADVO regime in Div 1A. Such an order is in issue in these proceedings. Section 562AC provides:

“562AC(1) The objects of this Division are:
(a) to ensure the safety and protection of all persons who experience domestic violence, and
(b) to reduce and prevent violence between persons who are in a domestic relationship with each other, and
(c) to enact provisions that are consistent with certain principles underlying the Declaration on the Elimination of Violence against Women.
(2) This Division aims to achieve its objects by:
(a) empowering courts to make apprehended domestic violence orders to protect people from domestic violence, and
(b) ensuring that access to courts is as speedy, inexpensive, safe and simple as is consistent with justice.
(3) In enacting this Division, Parliament:
(a) recognises that domestic violence, in all its forms, is unacceptable behaviour, and
(b) recognises that domestic violence is predominantly perpetrated by men against women and children, and
(c) recognises that domestic violence occurs in all sectors of the community.
(4) A court that, or person who, exercises any power conferred by or under this Part in relation to domestic violence must be guided in the exercise of that power by the objects of this Division.”

23 The legislative scheme makes separate provision for many of the matters outlined in either the Local Courts Act 1982 or the Procedure Rule with respect to other aspects of the Court’s jurisdiction, including:

· The institution of proceedings by way of complaint (s562AD);

· Specific provision for issue of summonses for the appearance, or warrants for the arrest, of the defendant (s562AF);

· Suppression of the address of the protected person in the complaint or an order (s562AG);

· Provision for the procedure for making a complaint, including empowering a police officer, and not only the person in need of protection, to do so (s562C);

· The award of costs (s562N); and

· A power to direct persons to leave the hearing even if in public (s562NA(2)).

24 Part 6 of the Local Courts Act 1982, as supplemented by Pts 5, 6 and 9 of the Procedure Rule, make detailed provision for the conduct of application proceedings in the Local Court. This includes provision for the mode of commencement of proceedings; service of documents; the conduct of the proceedings, including such matters as timetables, filing and exchange of statements of evidence and of agreed facts; the conduct of the hearing, including the determination of the time and place for hearing, the mode in which the case is to be conducted; express powers for dismissal and provisions for compulsion of witnesses and issue of warrants of arrest and for the award of costs.

25 It is unnecessary to set out these provisions in detail. As I will show below, neither Pt 6 of the Act, nor the relevant Parts of the Procedure Rule, apply to proceedings under Pt 15A of the Crimes Act 1900. Accordingly, cl 62 of the Procedure Rule, which expressly empowers the Local Court to grant access to documents, does not apply in the case of such proceedings. It appears that Parliament intended applications under Pt 15A of the Crimes Act 1900 to be conducted in a different manner and this intention is reflected in the procedural provisions made in Pt 15A itself which cover much of the ground in the Local Courts Act 1982 and the Procedure Rule.

26 Subject to any express provision in the Act, the Court will no doubt conduct AVO proceedings in accordance with its usual practices. In the case of ADVOs it will, in accordance with s562AC(4), be guided by s562AC(2)(b) to seek to ensure that the proceedings are “as speedy, inexpensive, safe and simple as is consistent with justice”.

A Right of Access?

27 The principal submission of the Claimants was that the public and, therefore, the Claimants, had a right to inspect documents used in open court. They submitted that the Local Court had no power to deny access to any such document. The Claimants rely on the principle of open justice.

28 The Claimants’ submissions proceeded as if the proposition that needed to be answered was whether the Local Court had an implied power to prevent access to material in the court file, rather than whether the Local Court had an implied power to grant access to such material. They submitted that “absent statutory authority, any denial of access can only occur when in the administration of justice, it is necessary in a particular case” (par [24] of Written Submissions). The Claimants restricted their claim in this regard to material that had been used in court.

29 Neither the Claimants, nor the public at large, have a right of access to court documents. The “principle of open justice” is a principle, it is not a freestanding right. It does not create some form of Freedom of Information Act applicable to courts. As a principle, it is of significance in guiding the court in determining a range of matters including, relevantly, when an application for access should be granted pursuant to an express or implied power to grant access. However, it remains a principle and not a right.

30 A principle, as Professor Ronald Dworkin has stated:

“… states a reason that argues in one direction but does not necessitate a particular decision … There may be other principles or policies arguing in the other direction … If so, our principle may not prevail, but that does not mean that it is not a principle of our legal system, because in the next case, when these contravening considerations are absent or less weighty, the principle may be decisive.” (R Dworkin, Taking Rights Seriously (1977) at 26)

31 There is no common law right to obtain access to a document filed in proceedings and held as part of a court record. (See R Lucas & Son (Nelson Mail) Ltd v O’Brien [1978] 2 NZLR 289 at 305-307; Dobson v Hastings [1992] Ch 394 at 401-402; Smith v Harris [1996] 2 VR 335 at 347-350; R v Clerk of Petty Sessions; Ex parte Davies Brothers Ltd (Unreported, Supreme Court of Tasmania, Slicer J, 19 November 1998); Titelius v Public Service Appeal Board (1999) 21 WAR 201 at [74]-[88], [99]; Note “The Common Law Right to Inspect and Copy Judicial Records: In Camera or On Camera” (1982) 16 Georgia L Rev 659.)

32 I will consider further below the position with respect to access once material is deployed in open court. Subject to the provisions of a particular statutory regime, use in court will often be determinative when making a decision to give the media access to documents so deployed. That is a long way from saying that the court has no power to deny access. Any such positive right must be created by or under statute. There is none here.

Power to Grant Access

33 As noted above, the Claimants originally purported to make an application under Pt 9 cl 62 of the Procedure Rule, which entitles a non-party to proceedings to have access to a copy of the court record or transcript of evidence with the leave of a magistrate or registrar of the court. The Procedure Rule is concerned with three kinds of proceedings: committal proceedings, summary proceedings and application proceedings. Different Parts of the Procedure Rule apply to one or other of the three categories but Pt 9, including cl 62, applies to all three categories. The definition of “the Act” in cl 3 states that in certain parts of the Procedure Rule that word means the Criminal Procedure Act 1986 and in other parts it means the Local Courts Act 1982. The word “the Act” does not appear in Pt 9.

34 The words “applications proceedings” in Pt 9, including in cl 62, are not specifically defined. However, in Pt 5 of the Rule, which is expressly concerned with “application proceedings”, references to the Act are defined to be references to the Local Courts Act 1982. Section 11 of the Interpretation Act 1987 provides that words in an instrument, such as the Procedure Rule, will have the same meaning as they have in the relevant Act. Section 4 of the Local Courts Act 1982 defines “application proceedings” as “proceedings that may be dealt with under Part 6”. Section 36 of the Local Courts Act 1982, contained in Pt 6, specifically provides in s36(1)(c) that that Part does not apply to “any matter for which jurisdiction is conferred on a Local Court under … Part 15A of the Crimes Act 1900”.

35 The result is that there is no express provision for access to court documents in proceedings under Pt 15A of the Crimes Act 1900. The issue is whether or not a power to make such documents available to non-parties should be implied.

36 In the alternative to their primary submission that the Local Court did not have power to deny access to material used in court, the Claimants submitted that the court had power to grant access to documents as an incident of the power of the court to control its own processes or, if it be a different power, the power to create its own records and disseminate them. (See T36-37)

37 In this regard it is pertinent to note that cl 62 of the Procedure Rule deals with access by both parties and non-parties, the latter requiring leave. In the case of AVOs there is no express power to grant access even to parties. Different considerations apply to the process of implication in the case of parties and non-parties. This case is concerned with the latter.

38 The Local Court is a statutory court and, as such, has powers that are conferred expressly or are necessarily to be implied from the express conferral of powers. The test of implication was stated by the High Court in Grassby v The Queen (1989) 168 CLR 1 as a test of necessity. Dawson J, with whom the other members of the Court relevantly agreed, said at 16:

“… [N]otwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise …”

His Honour added at 17:

“It would be unprofitable to attempt to generalize in speaking of the powers which an inferior court must possess by way of necessary implication. Recognition of the existence of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be ‘derived by implication from statutory provision conferring particular jurisdiction’.”

39 The test of necessity has been applied in numerous other authorities. (See the cases collected in John Fairfax Publications Pty Ltd v District Court (NSW) [2004] NSWCA 324; 50 ACSR 380 at [35]-[36].)

40 Although identified as a test of necessity, such a test can be applied with varying levels of strictness. Where the principle of open justice is engaged, as it is when determining whether a court may sit in camera or prevent publication of its proceedings and orders, the test will be strictly applied. (See Scott v Scott [1913] AC 417 at 438 and the other authorities discussed in John Fairfax Publications Pty Ltd v District Court supra esp at [38]-[48].) As I said in John Fairfax Publications Pty Ltd v District Court supra:

“[51] Where, as here, the implication is of a power which conflicts with the principle of open justice, the test of necessity must be applied with strictness. Accordingly, it is necessary to determine that the objective of ensuring the fairness of a subsequent trial cannot be achieved in any other way. …”

41 In the present case no such high level of strictness is appropriate. Indeed the principle of open justice can be seen to point in the other direction. It is not appropriate to apply the most stringent sense of the word “necessary” as meaning “essential”.

42 In Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435, the High Court had to consider whether the express powers to enforce judgments in the District Court Act 1973 gave rise to an implied power to make an assets preservation order. The majority judgment of Gaudron, Gummow and Callinan JJ referred to the passages in Grassby v The Queen quoted above and said at 452:

“[51] The term ‘necessary’ in such a setting as this is to be understood in the sense given it by Pollock CB in Attorney-General v Walker ((1849) 3 Ex 242 at 255-256; 154 ER 833 at 838-839), namely as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement provided in Div 4 of Pt 3 of the District Court Act . In this setting, the term ‘necessary’ does not have the meaning of ‘essential’; rather it is to be ‘subjected to the touchstone of reasonableness’.”

(The last quotation is from State Drug Commission of NSW v Chapman (1987) 12 NSWLR 447 at 552.)

43 In Pelechowski the Court held at 452 that an asset preservation order could have been made to restrain dealing with an asset for the period until a judgment creditor could invoke the express procedures for enforcement such as a writ of execution. The order in that case, however, was not so limited and went too far.

44 There are limits to what a test of necessity can permit, even when the word is used in the sense identified by Pollock CB in Attorney-General v Walker (1849) 3 Ex 242; 154 ER 833 at Ex 255, ER 838, referred to with approval in Pelechowski: “the word ‘necessary’ does not mean absolutely necessary, but reasonably necessary with reference to the circumstances of the case”.

45 As the actual decision in Pelechowski makes clear, what is “reasonably necessary” cannot be stretched to encompass what is merely desirable or useful. It remains a test of necessity. (See Roads and Traffic Authority (NSW) v Hayek [2004] NSWSC 575; 41 MVR 47 at [29]-[33].)

46 In Pelechowski, the Court applied the test of reasonable necessity to the effectuation of the express powers of the Court. In the present case it was not suggested that a power to order access was needed to render effective the Court’s jurisdiction to make apprehended violence orders. The Claimants contended that the power should exist in aid of the principle of open justice to enable a fair report to be made or to ensure proper understanding of what happened in court. (T36-37) These objectives may be desirable of attainment but they do not, in my opinion, satisfy a test of necessity.

47 There is a public interest in facilitating a fair and accurate report of proceedings in court (Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 456; John Fairfax & Sons Pty Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465 at 481). It may well be appropriate to speak of a right to publish a report of court proceedings. (Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 43.) However desirable it may be to serve the objectives of the principle of open justice, it cannot, in my opinion, be said to be necessary to do so.

48 For these reasons, I am of the opinion that Syme DCM erred in holding that the Local Court had power to grant access. However, as the matter may go further, I will consider the Claimants’ challenge to the exercise of the power by her Honour.

Exercise of the Power

49 The proceedings invoke the supervisory jurisdiction of the Court. The Claimants assert that Magistrate Syme committed jurisdictional error in the course of determining their application for access. The Claimant’s submissions made a number of criticisms of her Honour’s reasons, many of which did not distinguish between alleged factual or legal errors on the one hand and jurisdictional errors on the other. There was no submission that an error of law appeared on the face of the record. This Court is concerned with jurisdictional error.

50 One legal error which the Appellant contended was made by her Honour was that her Honour proceeded on the basis that the Claimants carried the burden of establishing that it was necessary in the interests of justice, or for the proper operation of the Court or Pt 15A of the Crimes Act 1990, that they be granted access to documents. The Claimants submitted that this inverted the principle of open justice.

51 Assuming, without deciding, that this alleged error is a jurisdictional error, in my opinion her Honour was correct to place the burden on the Claimants. As indicated above, the principle of open justice does not confer a freestanding right. The Claimants sought access to documents, relevantly, pursuant to the court’s implied power to control its own processes or equivalent power. They carried the burden of establishing that the order they sought ought to be made.

52 Secondly, the Claimants challenged her Honour’s findings, quoted above, that the originating process had “not been used by the court in any formal sense” and that Keogh LCM had not been “required to rely on” the complaint.

53 The Claimants submitted that this was incorrect and misconceived the fact, said to be “fundamental” (written submission at [34]), that Keogh LCM had the originating process “before” her, to use her Honour’s word. (AB 15G-M) Assuming that this is capable of constituting jurisdictional error, which I strongly doubt, there was no error. Magistrate Syme’s analysis was correct.

54 Keogh LCM was asked to make an interim order by consent. The power to do so is found in s562BA of the Crimes Act 1900 which provides:

“562BA(1) A court may make an apprehended violence order under section 562AE or 562AI, or an interim apprehended violence order under section 562BB, without being satisfied as to the matters referred to in section 562AE, 562AI or 562BB (as appropriate) if the complainant and the defendant consent to the making of the order.
(2) Such an order may be made whether or not the defendant admits to any or all of the particulars of the complaint.
(3) Before making such an order, the court may conduct a hearing in relation to the particulars of the complaint only if:
(a) the order to be made by the court is final (that is, the order is not an interim apprehended violence order), and
(b) the court is of the opinion that the interests of justice require it to conduct the hearing.”

55 This section indicates that, in the context of a consent order, and particularly in the case of an interim order, nothing turns on the content of a complaint. What the court has to be satisfied about prior to making a consent order is the fact of an AVO complaint and the fact of consent. The content of the particular complaint is irrelevant.

56 The Claimant submitted that the use of the word “may” in s562BA created some form of discretion in the court as to whether or not it would make an order, even where there was consent. In my opinion this submission should be rejected. The word “may” in s562BA is permissive. It indicates that an order is able to be made without the pre-condition of satisfaction of the matters prescribed by the earlier sections referred to in s562BA. It is not used to create a “discretion”. If the court is satisfied that it has jurisdiction, in the sense that there is a complaint of the relevant character made under the Act, and it is satisfied that there is a consent to the order, in my opinion, the Court should not inquire further. This is subject, in the case of a final order only, to the Court forming the opinion in s562BA(3)(b) that a hearing should be conducted.

57 In the course of the administration of justice by Magistrate Keogh nothing more than the fact of a complaint and the fact of a consent was deployed. Indeed, as what was involved in the application for access to Magistrate Syme was a decision about an interim order, Magistrate Keogh, who made that order, was obliged by s562BA(3)(a) not to have a hearing.

58 In the statutory regime under consideration involving a consent order, the principle of open justice called for no more than that the existence of an AVO complaint and the existence of a consent order, together with the order made, be publicly available. Those facts and the order were made available. Nothing more was required to permit a fair and accurate report of what the court did.

59 The Claimants placed considerable reliance on the principle of open justice as a factor relevant to the decision which Syme DCM had to make. On the assumption I have made that power to permit access did exist, I agree that this was a relevant consideration. Her Honour treated it as such in her reasons and gave it considerable weight. I can detect no error, let alone jurisdictional error.

60 The principle of open justice is a fundamental axiom of the Australian legal system. It informs and energises numerous areas of the law as I have sought to show elsewhere. (See Spigelman “Seen to be Done: The Principle of Open Justice” (2000) 74 ALJ 290, 378.) It is appropriate for the court to have regard to the principle when determining applications for access under any express or implied power to grant access. In this regard it is, however, pertinent to recognise that the principle has purposes related to the operation of the legal system. Its purposes do not extend to encompass issues of freedom of speech and freedom of the press.

61 The purpose of the principle of open justice was well stated by Jeremy Bentham who said:

“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.” (Quoted in Garth Nettheim, “The Principle of Open Justice” (1986) 8 U Tas L R 25, 28 from Bowring (ed), Works of Jeremy Bentham (1843) Vol 4 at 316-317.)

62 To similar effect are the observations of Lord Diplock in Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 450:

“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.”

63 Finally, Sir Harry Gibbs observed in Russell v Russell (1976) 134 CLR 495 at 520:

“ … [T]he 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.”

64 Many similar observations could be quoted.

65 The principle of open justice is not engaged at the time of the filing of the proceedings. It is only when relevant material is used in court that it becomes relevant. As Slicer J put it in Ex parte Davies Brother Ltd supra at 6:

“The making of a complaint, without more, is no more than a statement by a party (often the State) that it wishes to have a particular grievance (public or private) determined by a court. … The making of a complaint does not attract the requirement of ‘open justice’ unless and until it becomes an issue between the parties.”

66 The Claimants sought to compare the present proceedings with a situation in which material has been taken as read, but not actually set out in open court. In such a case there is a strong argument for concluding that any express or implied power to grant access is relevantly invoked. (See, e.g. Cunningham v The Scotsman Publications Ltd [1987] SLT 698 at 705-706.) It is entirely appropriate for the court to ensure that the public is fully informed of the actual proceedings in court even though, perhaps by reason of efficient procedure or the application of particular rules of practice, the matter is not read out in open court, but is either taken as read or otherwise deployed in a manner which influences the actions of the judicial officer.

67 So, in Ex parte Davies Brothers Ltd supra, charges which were not formally read were nevertheless found to have been used in the court in a manner calling for the charges to be publicly available. Similarly, court orders are public documents open to public inspection. (See Titelius supra.)

68 It is unnecessary to determine a single test applicable in all situations to identify when a document has been put before the court in such a manner that it ought be made public. A useful test was proposed by Lord Clyde in Cunningham v The Scotsman Publications Ltd [1987] SLT 698 at 706:

“The test in my view is not what is actually read out – although all that is read out is published – but what is in the presentation of the case intended to be published and so put in the same position as if it had been read out. If it is referred to and founded upon before the court with a view to advancing the submission which is being made, it is taken as published.”

69 The underlying principle is as stated by Byrne J in Smith v Harris [1996] 2 VR 335 at 350:

“… [T]he policy which demands that the judicial process be open to public scrutiny does not demand that the subject matter of that process be available except in so far as this is necessary for the public to scrutinise the process itself.”

70 The Court gave the Claimants access to the fact of the complaint, the fact of the consent and the terms of the order. The purposes to be served by the principle of open justice were fully and completely served by this disclosure. No matter relevant to an understanding of what the Court actually did was withheld. To use Byrne J’s formulation in Smith v Harris, everything “necessary for the public to scrutinise the process itself” was made available. Nothing was withheld, to use Lord Clyde’s formulation in Cunningham v The Scotsman Publications Ltd, that involved “… the presentation of the case intended to be published”.

71 I have set out above her Honour’s reasons for rejecting the application. Her Honour took into account the nature of the allegations and the impact that public disclosure may have. These were matters of weight for her Honour to determine in the circumstances of the case. I can detect no error in her Honour’s reasons of a character which would entitle this Court to intervene in the exercise of a supervisory and not appellate jurisdiction. I can detect no jurisdictional error in her Honour’s reasons, assuming she had power to grant access.

72 The Claimants were critical of her Honour’s reference to “untested”, “unsworn” and possibly “hearsay” allegations. These were not said to be irrelevant considerations. Nor in my opinion were they irrelevant. It is simply not to the point, as the Claimants contended, that untested hearsay allegations are made public in other court proceedings. The issue was one of weight for her Honour.

73 The Claimants did, however, submit that it was an irrelevant consideration to take into account what it described as “the fourth opponent’s private rights”. (Written submissions at [37].) This may be a reference to her Honour’s reference to the fact that “access could cause harm to individuals” and that publication given to allegations may be “without protections that are normally provided and afforded against defamatory statements”.

74 These matters were not, in my opinion, irrelevant considerations. Her Honour was entitled to take into account the adverse consequences for a party of even a fair and accurate report of the content of the complaint, which could contain scandalous, insupportable and defamatory assertions.

75 The position under the power actually exercised by the Court invokes an example which Byrne J used in Smith v Harris supra at 341-342 with respect to the significance of the distinction between documents which were filed in court and those which were actually used in proceedings. His Honour said:

“The dominant right is that which says that the court’s proceedings must be open to the public, so that the public has confidence in their integrity … A document prepared for, filed and even served is not in that sense part of the court’s proceedings, at least until it is deployed as part of the judicial process … This distinction may be applicable, too, to affidavits which are filed in court and which may be never read or tendered. It may be that the parties have compromised the proceeding before their use in court, perhaps in order that their private dealings contained in the pleadings or other documents be not made public. What good purpose would then be served for them or for the public if some reporter were permitted to broadcast these matters for the gratification of a curious public? Public interest is not to be equated with public curiosity: Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 242 per Brennan J (dissenting), at 261 per McHugh J.”

76 The position of a consent order under the legislative scheme for apprehended violence orders appears to me to be the same. When the media come before the Court invoking high-minded principles of freedom of speech, freedom of the press or the principle of open justice, it is always salutary to bear in mind the commercial interest the media has in maximising its access to private information about individuals.

77 The common law has a long tradition of protecting persons’ right to privacy. I reiterate the observations I made in TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 at [59]-[61]:

“[59] Although the law has been particularly protective of persons from intrusion on the part of the organs of government, it should be no less protective in the case of other powerful sections of society of which, in contemporary conditions, the mass media is one. Indeed, as long ago as 1883 Sir James Martin, Chief Justice of this Court – himself a former editor of the original Australian newspaper and a former Premier – said, in the context of a defamation action ( Anderson v Fairfax (1883) 4 NSWR 183 at 216-217):
‘… the freedom of the press is valuable, but there is a limit beyond which it is necessary for the sake of the public interests, that this power of examination and comment should not be allowed to go. There are various kinds of tyrannies, but there is no tyranny which would be more disastrous or intolerable than the tyranny of an unbridled press over which there was no control.’
[60] In a case in which a television broadcaster had intruded onto property, on which a business was conducted, for the purpose of exposing what the journalists believed to be iniquity, ( Emcorp Pty Ltd v Australian Broadcasting Corporation [1988] 2 Qd R 169), Williams J said at 173-174:
‘Thus the judges jealously protect the rights of all citizens against oppressive conduct by the State, and do so by application of the principles of the common law without the necessity for any statute defining the rights of the individual. Those rights which in the past have withstood the challenge of unwarranted intervention by the State will also prevail in the courts against the unwarranted intrusion of the media. It would be unthinkable that under the guise of freedom of speech the media (particularly in a situation where competition for ratings was a motivating factor) could trample on the rights of citizens which were inviolable as against the State. If a police officer could not without more enter a home or office, armed with a video camera, to search for evidence of the commission of some offence, what law could possibly justify and protect the conduct of a news reporter in doing just that. If the courts stood by and permitted such conduct (particularly where purported investigation of offences was involved) then they would be abdicating their role as the institution in society according to whose rules questions of guilt or innocence were to be determined, and permitting the replacement thereof by trial by media.’
[61] The media have considerable power in contemporary society. That power is enhanced by the capacity for intrusion afforded by contemporary technology. That power can be wielded for good or ill. To establish, for the first time, a wide ranging right to enter property to pursue the truth, let alone the quite different requirements of a “good story”, would be to trust those who wield power to a degree that centuries of experience with searches and seizures establishes to be unwise.”

78 In my opinion, her Honour was entitled to give weight to the private rights of the Fourth Opponent in determining the application for access.

The Decision of McIntosh LCM

79 The statutory power exercised by his Honour McIntosh LCM is found in s562NA of the Crimes Act 1900 which provides:

“562NA (1) If an order is sought or proposed to be made for the protection of a child under the age of 16 years, or an application is made for the variation or revocation of such an order, proceedings in relation to that order or application are to be heard in the absence of the public unless the court hearing the proceedings otherwise directs.
(2) Even if proceedings referred to in this section are open to the public, the court hearing the proceedings may direct any person (other than a person who is directly interested in the proceedings) to leave the place where the proceedings are being heard during the examination of any witness.
(3) In proceedings on an application for an order or for the variation or revocation of an order, a child under the age of 16 years should not be required to give direct evidence about a matter unless the court is of the opinion that in the absence of the child's evidence insufficient evidence about the matter will be adduced.”

80 The Claimants submit that his Honour’s “decision” to close the court was infected by jurisdictional error and, accordingly, it is liable to be set aside. Alternatively, his Honour’s failure to “otherwise direct”, pursuant to s562NA, involved such error.

81 As noted above, McIntosh LCM had before him an application to make final orders in the ADVO proceedings by consent and also to extend the protection of those orders in favour of three other persons, one of whom was under the age of 16 years. Section 562BD of the Crimes Act 1900 expressly empowers the court to make an order extending to persons with whom the person for whose protection the order was applied for has a domestic relationship.

82 The Claimant submitted that the Local Court had no power to hear a Pt 15A matter in the absence of the public without first deciding:

(1) That it is necessary in the interests of justice to do so; or

(2) Whether alternative measures to protect the identity of any children the subject of the application for a protection order are available and/or sufficient.

83 This submission mistates the statutory test. Section 562NA operates with its own force and requires proceedings in relation to an order for protection of a child under the age of 16 years to be held in the absence of the public. This does not raise a question of power because the court makes no decision. The statute operates in accordance with its terms. Furthermore, facts and matters relevant to the exercise of the discretion to otherwise direct, conferred by the section, are not confined in the manner contended for or, indeed, in any other relevant manner.

84 The Claimants emphasise that only one of the persons to whom the protection of the order was intended to be extended was a child, and submitted that “less extreme measures” were available to protect the identity of the child, pending the disposal of the ADVO proceedings. The terminology of “less extreme measures” is inappropriate in the context of a statutory requirement that proceedings occur in the absence of the public, subject to the court directing to the contrary.

85 In their submissions the Claimants listed factors which, they submit, identify jurisdictional error in either the exercise of the alleged power to close the court or in the alleged “failure to consider whether to otherwise direct”, pursuant to the statutory power to do so. These matters included such factors as whether or not there was any “need or reason” to proceed in closed court; that orders could have been made without any reference to the child; that the case involved a serving judicial officer and was being heard by the court in which that officer could exercise her judicial functions; that allegations of apprehended domestic violence had been made and that the Fourth Opponent consented to a final ADVO; that the DPP was a party and, indeed, the party which continued to pursue the ADVO proceedings after Mr Coles had requested that the proceedings be dismissed. I do not see that any of these matters raise anything in the nature of a jurisdictional error, although some of them would have been relevant to the exercise of the statutory discretion to otherwise direct.

86 There was no evidence before this Court that his Honour’s decision to close the court miscarried in any way. There was no evidence capable of establishing that his Honour had failed to take into account any relevant consideration or had taken into account irrelevant considerations so that the discretion to “otherwise direct” miscarried. The Claimants’ submissions never rose above the proposition that there were alternatives not chosen. That is not enough for judicial review.

87 There was no issue that the terms of s562NA were engaged. An order was sought for the protection of a child under the age of 16 years and, accordingly, pursuant to that subsection, proceedings were to be heard in the absence of the public unless the court otherwise directed. The Claimants challenge what they submit was a “decision” to close the court with respect to the balance of the proceedings, particularly the order in the case of Mr Coles which became a final order.

88 In my opinion, these submissions proceeded on the basis of a misinterpretation of what his Honour did. I am satisfied that his Honour first turned his mind to whether or not he would make the consent order as sought, and determined to do so without a hearing. This he did in open court. It was only after having decided that he would do so that the Court proceeded in the absence of the public.

89 Pursuant to s562BA of the Crimes Act 1900, set out above, the court is empowered to make apprehended violence orders by consent without being satisfied of the matters of which it is ordinarily required to be satisfied under the respective provisions for the making of such orders, relevantly, s562AE, i.e. that a person has reasonable grounds to fear, and in fact fears, violence, harassment or molestation or acts of intimidation or stalking.

90 The transcript reveals the following steps:

· Counsel for the Informant made an application for a final ADVO to be made by consent in relation to Mr Coles, and that the order be extended to three other persons: (AB 246 U-Y)

“INGEGNERI: Now, what I’m asking your Honour is that – and it’s by consent–
STANTON: That’s so, your Honour.
INGEGNERI: –that that order be made an order for a period of 12 months without any admissions in relation to [Mr Coles] and further to – as I said, it’s clause 12, it’s on the second page of that particular order, we’re asking that we add three other persons to become protected persons.”

· His Honour sought to have his attention directed to something, but was twice interrupted by counsel before he could identify what it was: (AB 246 Z-247 D)

“HIS HONOUR: Is there anything before me that deals with?
INGEGNERI: It’s to be done by consent, your Honour.
HIS HONOUR: Yes but I’d need to have something before me that would indicate - ”

· Counsel for the Defendant then said: (AB 247 D-H)

“STANTON: Could I just say this, if I may assist my learned friend your Honour without unduly interrupting him in his address to you. There are matters your Honour that concern the possible need for suppression of the identity of the additional protected persons and we see that and we concede that, not just for the benefit of my client but certainly because in view of one of the protected persons or the potential protected persons the age of the protected person comes within the statute, under 16. The identity of that person should be suppressed.”

· His Honour then said: “There’s provision for that”, clearly a reference to s562NA: (AB 247 I)

· Counsel then proceeded to interrupt each other: (AB 247 J-L)

“INGEGNERI: The note I …
STANTON: Could I ..”

· His Honour then made his position perfectly clear: (AB 247 L-N)

“HIS HONOUR: One at a time, please. We won’t proceed to make issues of suppression or otherwise until I deal with the making of orders . Let me read the complaint, I haven’t done that, I’ll do it now. Take a seat. …” [Emphasis added]

· Having read the complaint and the text of s562BA, his Honour continued: (AB 247 Q-T)

“HIS HONOUR: … Okay. I can make 562BA.
STANTON: Yes, thank you sir.
HIS HONOUR: I interpret this section, with the parties’ consent, I can make orders without being satisfied as to the matters referred to in 562BA.”

· It was only after his clear indication that his Honour would make orders by consent that consideration was given to the closing of the court pursuant to s562NA. (AB 247 V-248 Z)

· It is apparent that his Honour did not form the opinion that the interests of justice required a hearing and, accordingly, by force of s562BC(3), set out above, no hearing could be held. However, his Honour did need to consider the issue of joinder under s562BD.

91 The open part of the transcript indicated that his Honour first determined, in open court, to exercise the power in s562BA to make a final ADVO in favour of Mr Coles by consent and without a hearing. Only after having so determined did his Honour turn his mind to the closure of the Court and the addition of the three other persons.

92 This conclusion is reinforced by the observation made in the course of the subsequent consideration of proceeding in the absence of the public, when his Honour emphasised that s562NA applied to “only one person” and added:

“Interestingly, while members of the public are entitled to be here for one, maybe more, of the persons to be named in dealing with this matter, the only practical way is to close the court. We’ll have to order that all witnesses not related to this matter leave the court.”

93 As the application involved the extension of an order in favour of another person, being a child in a domestic relationship with one of the persons to whom protection was to be extended, his Honour’s understanding of the practicality of the situation was open to him.

94 It appears from the blank transcript of the remainder of the proceedings that when the final order was actually made the court was still proceeding in the absence of the public. I infer this only from the fact that the transcript does not record the making of the order in open court. I have not found it necessary to refer to the confidential transcript. The Court should have formally made the order in public, suppressing the name of the child and the identity of any person whose identity could identify the child. However, the orders were in fact made available to the Claimants and, thereby, to the public. The Claimants do not seek any order with respect to the actual orders, which they have had from the outset.

95 Magistrate McIntosh committed no error, let alone a jurisdictional error.

Constitutional Issues

96 The Claimants invoked the implied constitutional freedom of communication. There are a number of answers to this submission. It is sufficient to state that the freedom is a negative one which creates an immunity rather than any freestanding right. The constitutional immunity does not provide a right of access to legislative or executive documents, let alone to judicial documents. There must be a burden on a freedom that exists independently of the law. There is none here. (See Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 560; Mulholland v Australian Electoral Commission (2004) 78 ALJR 1279 at [107]-[109], [180]-[187], [337], [356]; see also Titelius supra at [87].)

97 In oral submissions, reference was made to developing the common law in an unspecified manner, but presumably to establish a common law right of access. Since Lange it is established that the common law must conform with the Constitution. Lange is not, however, authority for the proposition that the common law must be developed to create new rights where none exist.

98 The argument based on Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 was barely pressed. I can see no incompatibility between an ability to refuse access and the exercise of judicial power. The issue of whether or not to grant access to documents or to close a court arises from time to time. It has often been held that Parliament may create new exceptions to the principle of open justice. Only the most intrusive legislative intervention in this regard could give rise to an issue of institutional integrity of the courts. (See Baker v The Queen (2004) 78 ALJR 1483 esp at [5]; Fardon v Attorney-General (Qld) (2004) 78 ALJR 1519 at [15], [41].) There is nothing remotely like that here.

Conclusion

99 The orders I propose are:

1 The proceedings be dismissed.

2 The Claimants pay the Opponents’ costs.

100 MASON P: I agree with Spigelman CJ.

101 BEAZLEY JA: I agree with Spigelman CJ.

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21/04/2005 - Solicitors for 1st and 2nd Opponent changed to I V Knight Crown Solicitor - Paragraph(s) Headnote on p3