O'Shane v Burwood Local Court (NSW) & Ors

[2007] NSWSC 1300

Reported Decision: 178 A Crim R 392

New South Wales

Supreme Court

CITATION:	O'SHANE v BURWOOD LOCAL COURT (NSW) & ORS [2007] NSWSC 1300
HEARING DATE(S):	2 November 2007
JUDGMENT DATE :	19 November 2007
JURISDICTION:	Civil
JUDGMENT OF:	McClellan CJatCL
DECISION:	1. The pseudonym order made in relation to the identity of Miss Armstrong is quashed; 2. I order the 2nd and 3rd opponents to pay the claimant's costs; 3. Direct that the 2nd and 3rd opponents may, if qualified, have a certificate under the Suitors' Fund Act.
CATCHWORDS:	CRIMINAL LAW - jurisdiction - powers of courts and Judges - superior court - statutory court - inherent jurisdiction - jurisdiction of Local Court - implied power - implied power of Local Court - test of necessity - necessary to secure the proper administration of justice - touchstone of reasonableness - non-publication order - pseudonym order - suppression of identity, name or personal identifiers - identity of witness or victim - open justice - exception to principles of open justice - well established categories - informer, blackmail, national security, extortion - unacceptable consequences - intense media scrutiny, media attention, publicity - person in high public office - CRIMINAL LAW - apprehended violence order - apprehended personal violence order (APVO) - apprehended domestic violence order (ADVO) - Crimes Act 1900 (NSW) Pt 15A s 562ZK - Local Courts Act 1982 (NSW) Pt 6 - application proceedings - non-publication - Civil Procedure Act 2005 (NSW) ss 4, 72, Sch 1 - Local Courts Act 1982 (NSW) Pt 6
LEGISLATION CITED:	Crimes Act 1900 (NSW) Crimes (Personal and Family Violence) Amendment Act 1987 Crimes Amendment (Apprehended Violence) Act 1999 Crimes Amendment (Apprehended Violence) Act 2006 (NSW) Civil Procedure Act 2005 (NSW)
CASES CITED:	Grassby v The Queen (1989) 168 CLR 1 John Fairfax & Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465 John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 John Fairfax Publications Pty Limited v District Court of New South Wales (2004) 61 NSWLR 344 John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 R v Kwok (2005) 64 NSWLR 335 R v Smith (1996) 86 A Crim R 308 R v Socialist Worker Printers and Publishers Ltd; Ex parte Attorney-General [1975] 1 QB 637 Witness v Marsden (2000) 49 NSWLR 429
PARTIES:	Patricia O'Shane (Claimant) Burwood Local Court (NSW) (1st Opponent) Commissioner of Police (NSW) (2nd Opponent) Constable Luke Smith (3rd Opponent)
FILE NUMBER(S):	SC 14997/07
COUNSEL:	G Bashir (Claimant) Submitting appearance (1st Opponent) M England (2nd and 3rd Opponents)
SOLICITORS:	McLachlan Thorpe (Claimant) Submitting appearance (1st Opponent) NSW Police Legal Services (2nd and 3rd Opponents)
LOWER COURT JURISDICTION:	Local Court
LOWER COURT JUDICIAL OFFICER :	Mottley LCM
LOWER COURT DATE OF DECISION:	21 September 2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCLELLAN CJ at CL

MONDAY, 19 NOVEMBER 2007

14997/07 O’SHANE v BURWOOD LOCAL COURT (NSW) & ORS

JUDGMENT

1 HIS HONOUR: The claimant, Patricia O’Shane, has brought proceedings in which she challenges an order made in the Burwood Local Court by the first opponent. Although the precise terms of the order are unclear, the effect was a “pseudonym order” in respect of a person identified as “Ms B”.

2 The order was made in proceedings brought by a constable of police in which initially an order was sought pursuant to s 562F of the Crimes Act 1900 (NSW). That section provides for the making of an apprehended domestic violence order (“ADVO”) against someone with whom the “applicant” has or has had a “domestic relationship”, as defined in s 562B.

3 The written application also sought a non-publication order in relation to the names of certain persons. The request was framed in the following terms:

“Police respectfully request that the court grant an order that under s 562ZK of the Crimes Act, to prevent the name of O’SHANE, [Ms B] or COLE being published or broadcast by the media, as the last time an AVO was applied for, all parties were subject to intense media scrutiny.”

4 The proceedings came before the magistrate on Friday, 21 September 2007. Because the proceedings did not relate to a “domestic relationship” the application was amended so that it became an application for an apprehended personal violence order (“APVO”) pursuant to s 562J of the Act.

5 During the course of the hearing on 21 September 2007, a number of further matters were considered. Counsel had originally sought an interim AVO which led to consideration of whether the application itself was evidence of the matters alleged in it. In the course of the discussion the magistrate said that it was not and that before an order could be made “[i]t will be necessary in my view, for there to be evidence before the court. Sworn evidence.” There was further discussion during which the magistrate said:

“Well, what evidence do you intend to rely upon to make the order? And don’t tell me you are just relying upon the application because the application is not evidence.”

6 Subsequently, counsel did not press the application for interim orders. However, the application for suppression orders was pursued although ultimately confined to a request for pseudonym orders.

7 Counsel conceded a lack of standing to seek a pseudonym order in respect of the claimant but pressed the application in relation Ms B and her partner, Mr Cole.

8 There had been earlier proceedings in which Mr Cole sought ADVO orders against Ms O’Shane. They were considered in John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512. In those proceedings orders were made by consent, with no application being made for a pseudonym order or any other order suppressing the details of the application or hearing.

9 The standing of the claimant in relation to the application for pseudonym orders was considered by the magistrate. Her Honour eventually ruled that, as the application was being made by the police on behalf of Ms B, Ms O’Shane was not a party and her counsel was not entitled to appear. Nevertheless the magistrate granted counsel the opportunity to make submissions as a “friend of the court.”

10 The ruling by the magistrate was not correct. Ms O’Shane was a party to the primary proceedings and had a right to be heard in relation to any interim or ancillary orders. Counsel for the police conceded the claimant’s standing in this Court.

11 Because the basis for the AVO had changed counsel for Ms O’Shane submitted that she was not prepared to deal with the matter on 21 September. She asked that the matter be stood over. The magistrate rejected the application for adjournment and proceeded to determine the application for a pseudonym order. She took this course because, in my view correctly, she was concerned that the AVO application having been made to the court unless a pseudonym order was made that day there would be no purpose in it being made later. Without an order the press would be able to publish Ms B’s name.

12 As I have indicated the application was originally framed as an application for an ADVO. Accordingly, the statutory power to make an order in the nature of a pseudonym order was available under s 562ZK. However, when the application was amended to seek an APVO s 562ZK was not available. Counsel for the police submitted that the magistrate had power to make the order exercising “the implied powers of the court to suppress.” She said:

“It is late in the day on a Friday, perhaps I can make it clear and simple, what I am proposing acknowledges and allows for the public interest and the open administration of justice, the proceedings would be heard in open court, there would be no suppression of the evidence, and that could be reported on which is where the public interest in my submission really lies. All I seek is the legitimate protection of someone who is subject to a storm of media attention last time I, in my submission don’t need evidence of that, because it is clear from the authority of John Fairfax and Ryde Local Court, the extent of the media interest.”

13 This statement by counsel that she did not intend to tender any evidence was accompanied by reference to the decision in John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131. That case was concerned with the inference that a court could draw from its own knowledge of the consequences that may flow if publicity is given to the evidence of an informer or victims in blackmail and extortion cases. The decision is not authority for a proposition that evidence is not required of the primary facts.

14 Counsel further submitted that “the consequences that will flow from public identification of the person in need of protection and her partner will be unacceptable.” When asked by the magistrate to explain what the consequences would be, counsel responded that “there isn’t evidence on this point before your Honour, and I will tender confidentially the complaint if required, your Honour saw this morning the media interest in the court.” That submission was followed by these remarks:

“I am instructed your Honour there was a camp out, outside her house for a month. The last time this application was made in 2004, besieged by the media.

Really harassment of such seriousness that well, let me just say, serious, serious intent, media attention.”

15 Counsel submitted that a pseudonym order would provide Ms B with a measure of protection, by preventing the publication of her name or any other information such as photographs of her that would identify her. Counsel also made mention of Ms B’s children as a further relevant consideration, namely that “[Ms B] has a 16 year old and a 20 year old and if her name is disclosed that inevitably leads to identification of her children, both of whom I am instructed live at home with her.” Counsel also submitted that a pseudonym order should be made with Ms B’s occupation in mind, so that “her professional life won’t then be public.” No detail of her professional life was provided.

16 Her Honour heard brief submissions from counsel for Ms O’Shane. She then adjourned. Upon her return, her Honour expressed her conclusions in the following terms:

“It is essentially an ex tempore decision that I give today.

In respect of the application before the court, consideration always must be given as to whether the private interest outweighs the public interest.

The matter before the court is a proceeding that is characterised as a civil matter, whereby there has been an application made for an apprehended personal violence order by the police, on behalf of [Ms B].

The respondent to these proceedings is a New South Wales judicial officer.

Proceedings similar to these have been instituted previously, and as a matter of record attracted significant media attention, given the office held by the respondent.

I am told through the course of the application for the pseudonym order that [Ms B] also suffered the scrutiny of the media with members of the press to use their words, put to the court, camping outside her premises for approximately one month. This is an unacceptable situation.

I am being asked to make an order today applying a pseudonym in order to protect [Ms B] from the likelihood of similar conduct following the initiation of these proceedings.

The use of the pseudonym will not prevent the reporting of the proceedings, but it will prevent [Ms B] from being identified throughout media broadcast or publication.

The paramount consideration in this application is the need to security [sic] the proper administration of justice.

I am told that [Ms B] is seeking the protection of the court from the harassment from the media which is attracted or will be likely to be attracted to these proceedings, no doubt because of the office held by the respondent.

It is fair to say in all other aspects of these proceedings, they of themselves are unremarkable and would not otherwise attract the attention of the media.

The concern of this court is that if protection such as that being sought by [Ms B] is not extended, it may operate to defeat the proper administration of justice. It may be persons in the future who have genuine grievances against persons in public office, may be deterred from doing so because of the conduct of the media complained of in this instance by [Ms B].

IT IS ON THAT BASIS THAT I PROPOSE TO MAKE A PSEUDONYM ORDER FOR THE PROTECTION OF [MS B], ONLY, TODAY.

…

I am making a pseudonym order in respect of [Ms B] only on the basis that she is the person named as the person in need of protection.”

Present proceedings

17 In the proceedings before this Court the claimant seeks the following relief:

1. Relief in the nature of a declaration that the order of Mottley LCM of 21 September 2007, that “Ms B” be referred to only by that pseudonym was beyond power, void and is of no effect.
2. Relief in the nature of a declaration that the order of Mottley LCM of 21 September 2007, that “Ms B” be referred to only by that pseudonym was made relying on matters which were insufficient in law to warrant the making of the order.
3. Relief in the nature of certiorari quashing the order of Mottley LCM of 21 September 2007, for a pseudonym for “Ms B”.
4. An order that the opponents meet the claimant’s costs in these proceedings.
5. Such other orders as the Court thinks fit.

18 The grounds for relief were expressed as follows:

(1) There is error of law apparent on the face of the record of the proceedings and/or jurisdictional error as there was no power to make such order in the circumstances of the “APVO” before Mottley LCM.
(2) There is error of law apparent on the face of the record of the proceedings and/or jurisdictional error as Mottley LCM failed to apply a test of necessity in invoking the “power” to make the order.
(3) There is error of law apparent on the face of the record of the proceedings and/or jurisdictional error as there was no basis for the making of the order.
(4) There is error of law apparent on the face of the record of the proceedings and/or jurisdictional error as the order was made without any evidence being tendered in support of the application.
(5) There is error of law apparent on the face of the record of the proceedings and/or jurisdictional error as in making the order for a pseudonym, Mottley LCM failed to accord natural justice and/or procedural fairness to the claimant.
(6) There is error of law apparent on the face of the record of the proceedings and/or jurisdictional error as Mottley LCM had regard to matters, which were irrelevant to the application, namely, the profession of the claimant and her standing in the community.

The principle of open justice

19 The resolution of this dispute requires consideration of the principle of open justice and the occasions when it may be appropriate to suppress publicity to proceedings or an aspect of proceedings. They are well settled. In John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344 Spigelman CJ said:

“[18 ] It is well established that the principle of open justice is one of the most fundamental aspects of the system of justice in Australia. The conduct of proceedings in public including, relevantly, the taking of verdicts after a criminal trial, is an essential quality of an Australian court of justice . There is no inherent power of the court to exclude the public. (See Scott v Scott [1913] AC 417 at 473; Dickason v Dickason (1913) 17 CLR 50 at 51; Daubney v Cooper (1829) 10 B & C 237; 109 ER 438 at 440; Russell v Russell (1976) 134 CLR 495 especially at 507 and 520–521, 532.) The taking of a verdict is something which occurs in the ordinary course of criminal proceedings. (See, for example, Coulter v The Queen (1988) 164 CLR 350 at 356, 357 and cf 359–360, 362.)

[19] It is also well established that the exceptions to the principle of open justice are few and strictly defined. (See, for example, McPherson v McPherson [1936] AC 177 at 200; R v Tate (1979) 46 FLR 386 at 402.) It is now accepted that the courts will not add to the list of exceptions but, of course, Parliament can do so, subject to any Constitutional constraints. (See, for example, Dickason (at 51); Russell (at 520); John Fairfax Publications Pty Ltd v Attorney General (NSW) (2000) 158 FLR 81 at 93 [70]–[73].)

[20] The entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public. Nothing should be done to discourage fair and accurate reporting of proceedings. (See, for example, Attorney General v Leveller Magazine Ltd [1979] AC 440 at 450.)

[21] From time to time the courts do make orders that some aspect or aspects of court proceedings not be the subject of publication. Any such order must, in the light of the principle of open justice, be regarded as exceptional. (See, for example, Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 50D–E and 54G.)” (emphases added)

20 In John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512, Spigelman CJ said at [29]:

“The “principle of open justice” is a principle , it is not a freestanding right… As a principle, it is of significance in guiding the court in determining a range of matters… However, it remains a principle and not a right.” ( his Honour’s emphasis )

21 Open justice is important for the maintenance of accountability in the exercise of judicial power. However, the law also recognises that there may be circumstances when the court should act to prevent “unacceptable detriment to individuals and the proper administration of justice” (John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 at 164 per Mahoney JA). The open justice principle can be qualified where it is necessary so to do “commensurate with the purpose” for which the statutorily conferred jurisdiction exists (John Fairfax Group Pty Ltd v Local Court of New South Wales at 164 per Mahoney JA).

Legislative scheme

22 Provision was first made for apprehended violence orders in Pt 15A of the Crimes Act 1900 (NSW) by the Crimes (Personal and Family Violence) Amendment Act 1987. From its inception Pt 15A only referred to apprehended violence orders in general terms. There was no distinction between orders relating to “domestic” problems from problems of a more general nature. The original legislation did not provide a mechanism to suppress the identity of persons seeking the protection of an AVO or those involved in AVO proceedings.

23 Amendments were made to Pt 15A by the Crimes Amendment (Apprehended Violence) Act 1999. Provision was made for two types of AVO’s, apprehended domestic violence orders (ADVOs, see Division 1A ss 562AC-562AE in force at the time) and the other apprehended personal violence orders (APVOs, see Division 1B ss 562AH-562AI in force at the time). Express provision was also made for the non-publication of the name of an adult person for whose benefit or against whom an order is sought in ADVO proceedings, or who appears as a witness or is mentioned or otherwise involved in ADVO proceedings (see s 562NC in force at the time). If an order was made the prohibition on the publication or broadcast of the names of these persons operated from the time before the ADVO proceedings commenced or after the proceedings commenced and before they were disposed of (s 562NC(1) in force at the time). A similar provision was not included in relation to APVO’s.

24 The intention of the legislature in providing two types of AVOs was stated in the Second Reading speech (Hansard, Legislative Council, 25 November 1999, p 3674):

“The seriousness of domestic violence and its effects on women, children and the community at large can be somewhat trivialised and minimised through association with matters such as neighbourhood and workplace disputes. The separation of these two categories of AVO is designed not only to recognise the difference in the nature and level of violence in domestic and non-domestic matters but to establish some significant legislative distinctions in the ways in which AVOs are dealt with according to their classification.”

25 Pt 15A was replaced in its entirety by the Crimes Amendment (Apprehended Violence) Act 2006 (NSW), which commenced on 12 March 2007.

26 It can be assumed that the legislature turned its mind to the question of suppression orders in relation to AVO’s. Section 562NC was replaced by s 562ZK but its content remains unchanged. It remains confined to ADVO proceedings. Section 562ZK is in the following terms:

“(1) A court may direct that the name of a person (other than a child to whom section 562ZJ applies):

(a) for whose protection or against whom an order is sought in any relevant proceedings, or
(b) who appears, or is reasonably likely to appear, as a witness before a court in any relevant proceedings, or
(c) who is, or is reasonably likely to be, mentioned or otherwise involved in any relevant proceedings,


must not be published or broadcast before the proceedings are commenced or after the proceedings have been commenced and before they are disposed of.

(2) A person who publishes or broadcasts the name of a person in contravention of a direction under subsection (1) is guilty of an offence.

Maximum penalty: 200 penalty units or imprisonment for a period not exceeding 2 years, or both (in the case of an individual) or 2,000 penalty units (in the case of a corporation).

(3) Subsection (1) does not prohibit:

(a) the publication or broadcasting of an official report of the proceedings of a court that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by subsection (1), or
(b) the publication or broadcasting of the name of a person with the consent of the person or of the court.


(4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material:

(a) that identifies the person, or
(b) that is likely to lead to the identification of the person.


………

(8) In this section:

court includes the registrar of a Local Court or the Registrar of the Children’s Court.

relevant proceedings means proceedings in or before a court under this Part for or relating to an apprehended domestic violence order.”

27 Because there is no express power in the legislation to suppress the name of a party or complainant in APVO proceedings counsel for the police submitted that either s 72 of the Civil Procedure Act 2005 (NSW) or the implied power of the court to protect its process would provide jurisdiction in the magistrate to make the pseudonym order.

28 Section 72 in Pt 6 of the Civil Procedure Act 2005 (NSW) provides:

“The court may, by order, prohibit the publication or disclosure of any information tending to reveal the identity of:

(a) any party to proceedings, or
(b) any witness in proceedings,

if it is of the opinion that it is necessary to do so to secure the proper administration of justice in the proceedings.”

29 Section 72 is only available to a magistrate in the Local Court in proceedings falling into identified categories specified in Schedule 1 to the Civil Procedure Act (s 4). Applications for AVOs are described as application proceedings in the Local Court and are governed by Pt 6 of the Local Courts Act 1982 (NSW) (Pt 15A s 562ZQ). Schedule 1 to the Civil Procedure Act does not include such proceedings. Accordingly, s 72 is not available in relation to ADVO or APVO proceedings in the Local Court.

Implied powers

30 The absence of a statutory power to suppress the name of a party or witness does not exhaust the powers available to the Court. However, it is a significant indication that any other power which may be available should only be exercised after careful consideration of the circumstances. A superior court has an inherent power to make orders to protect its process. In Grassby vThe Queen (1989) 168 CLR 1 Dawson J said at 16:

“In Reg v Forbes; Ex parte Bevan [(1972) 127 CLR 1 at 7], Menzies J pointed out that:

‘Inherent jurisdiction' is the power which a court has simply because it is a court of a particular description. Thus the Courts of Common Law without the aid of any authorizing provision had inherent jurisdiction to prevent abuse of their process and to punish for contempt. Inherent jurisdiction is not something derived by implication from statutory provisions conferring particular jurisdiction; if such a provision is to be considered as conferring more than is actually expressed that further jurisdiction is conferred by implication according to accepted standards of statutory construction and it would be inaccurate to describe it as `inherent jurisdiction', which, as the name indicates, requires no authorizing provision. Courts of unlimited jurisdiction have `inherent jurisdiction'."

Inherent jurisdiction is an elusive concept and the proposition that it arises from the nature of a court has been described as metaphysical. See Yale Law Journal , vol 57 (1947) 83, at p 85, cited by Jacob, "The Inherent Jurisdiction of the Court", Current Legal Problems , vol 23 (1970) 23, at p 27. But it is undoubtedly the general responsibility of a superior court of unlimited jurisdiction for the administration of justice which gives rise to its inherent power. In the discharge of that responsibility it exercises the full plenitude of judicial power. It is in that way that the Supreme Court of New South Wales exercises an inherent jurisdiction. Although conferred by statute, its powers are identified by reference to the unlimited powers of the courts at Westminster.”

31 These powers have been utilised by courts to make orders concealing the identity of persons in limited circumstances. Orders have been made in relation to police informers, blackmail and national security matters (John Fairfax Group Pty Ltd v Local Court of New South Wales at 148 per Kirby P and 159 per Mahoney JA)

32 Unlike superior courts the powers of a statutory court are confined. In Grassby Dawson J confirmed that such a court was confined to the powers “necessary” for the effective exercise of the jurisdiction conferred by the statute. His Honour said at 16-17:

“On the other hand, a magistrate's court is an inferior court with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution. It is unable to draw upon the well of undefined powers which is available to the Supreme Court. However, notwithstanding 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 (ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest). Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent. The distinction between inherent jurisdiction and jurisdiction by implication is not always made explicit, but it is…fundamental.
……
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 provisions conferring particular jurisdiction" .” ( emphases added )

33 The test of necessity was further considered by the High Court in Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 which related to the jurisdiction of the District Court. Gaudron, Gummow and Callinan J said at [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, 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".”

(See also John Fairfax Publications Pty Ltd v Ryde Local Court (2005) at [42].)

34 Where the open justice principle is engaged, a high level of strictness in applying the test of necessity is appropriate if the jurisdiction or power sought to be implied would, if exercised, result in closing the court or prohibiting the publication of any information (reasons, verdict or orders) about the proceedings (John Fairfax Publications Pty Ltd v Ryde Local Court (2005) at [40]-[41] per Spigelman CJ).

35 The test for determining the scope of the jurisdiction, which arises by implication “upon the principle that a grant of power carries with it everything necessary for its exercise”, was considered in John Fairfax Group Pty Ltd v Local Court of New South Wales. In that case Mahoney JA (with whom Hope AJA agreed) concluded that Local Courts have the power to make pseudonym and analogous suppression orders in committal proceedings for extortion, which had not been one of the recognised common law categories where suppression of identity is warranted. His Honour articulated a number of reasons for that conclusion.

· Although Local Courts are creatures of statute and do not have inherent powers as superior courts of record do, implied powers are attributable to them by reason of the statutory conferral of jurisdiction upon them (at 160).

· The test for the identification or existence of an implied power is whether it is: really necessary to secure the proper administration of justice in the proceedings before a Local Court (at 161, adopting with approval the exposition of McHugh JA in John Fairfax & Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465 at 476-477). This does not mean that if the relevant order is not made, the proceedings cannot continue or will collapse (at 161).

· The criterion “necessary to secure the proper administration of justice” focuses on what is necessary for the proper function of the court and aims to prevent consequences that are unacceptable. (at 161)

· To explain “consequences that are unacceptable”, his Honour referred to specific cases where superior courts of record have exercised their inherent jurisdiction to conceal the identity of persons, for example, cases involving police informers and blackmail victims. In such cases the orders seek to avoid damage to the victim and/or mischief to the public. His Honour said:

“The kinds of consequences that, in this sense, will be seen as unacceptable may be gauged by those involved in the cases in which statutory courts have been accepted as having restricted powers. Thus, there will be hardship on the informer or the security officer or the blackmail victim; the future supply of information from such persons will end or will be impeded; and it will be more difficult to obtain from such persons the evidence necessary to bring offenders before the courts and deal with them. It is not necessary to attempt to state exhaustively the considerations relevant in this regard: it is to considerations of this kind or of an analogous kind on which the principle stated by McHugh JA is based .” (at 161, emphases added)

36 In relation to extortion cases Mahoney JA said:

“if the identity of the victims was revealed, there [are] apt to be others (“copycat situations”) who would seek to extort money from these victims or from other potential victims, and that the investigation of the offences would be more difficult because of confusion between real and mischievous threats…” (at 163)

37 In John Fairfax Publications Pty Limited v District Court of New South Wales (2004) 61 NSWLR 344 at [39]-[47] Spigelman CJ (with whom Handley JA and M W Campbell AJA agreed) referred to these reasons with approval and recognised their applicability to “well-established categories” such as those involving police informer and victims of blackmail. In relation to “police-informer-type” cases, his Honour cited R v Smith (1996) 86 A Crim R 308 where the Court of Criminal Appeal (constituted by Gleeson CJ, Clarke and Sheller JJA) said at 311:

“However, in certain circumstances the law recognises that a more important public interest is served by protecting information, or the identity of an informant, from disclosure in court. One such circumstance is involved in the practice, which has long since hardened into a rule of law, that the identity of police informers will be protected from disclosure… The rationale of this form of public interest immunity is that, if it were not extended, sources of information would dry up and the prevention and detection of crime would be hindered .” ( emphases added )

38 In John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) Kirby P identified the central characteristic in blackmail cases in these terms:

“Blackmail arises where both the extortioner and the victim share a guilty secret which the victim (to avoid shame, distress, embarrassment, hurt or other damage) wishes to keep from the public or a section of the public. This is not a feature of extortion cases, as such. There, the victim is oppressed by the extortioner who threatens dire consequences. But those consequences are not the revelation to the public of a guilty secret. This difference removes one of the important inhibitions which exists in the case of blackmail (or police informers) against the revelation of facts in open court. If such revelation were required, out of deference to the principle of openness, the blackmail would have succeeded or, to avoid that risk, the victim and the informant would likely not come forward . Nothing of the same inhibition exists in cases of extortion.” (at 148-149, emphases added )

(See also R v Socialist Worker Printers and Publishers Ltd; Ex parte Attorney-General [1975] 1 QB 637 at 644, 652 per Lord Widgery CJ discussing the rationale for non-disclosure of the names of blackmail victims; John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) per Spigelman CJ at [48]).

39 In R v Kwok (2005) 64 NSWLR 335 the controversy related to suppression of the name and identity of several complainant-witnesses in District Court proceedings for the prosecution of offences under the Criminal Code 1995 (Cth) relating to female persons taken into sexual servitude. Hodgson JA (with whom Howie and Rothman JJ agreed) decided that a non-publication order could be made because “there is an extremely close analogy with the crime of blackmail” (at [18]). His Honour made the following observations:

§ “The only power in the District Court to make an order directed to non-publication of a witness’s name is such power as may be implied as being necessary for the administration of justice.” (at [12], relying on John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131; John Fairfax Publication Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344).”

§ “The assimilation of this kind of crime to the existing established categories is not primarily to protect the victims from shame or embarrassment, but is rather to reduce the disincentive upon victims against reporting such crimes and thereby to reduce the support given by this disincentive to this kind of criminal activity (at [20]).”

§ “The Court will not freely invent new categories of cases, but in my opinion the Court may identify categories that, while not coinciding exactly with the existing categories, are very closely analogous to them and have the same rationale for the making of non-publication orders (at [16]).”

40 Witness v Marsden (2000) 49 NSWLR 429 concerned a witness who was a prisoner and had fears for his life and physical safety if he gave evidence without the protection of a pseudonym order. The court considered inter alia whether “the ends of justice would be defeated if the pseudonym order was not made” (at [114] per Heydon JA with whom Mason P and Priestley JA agreed).

41 With respect to the relevant principle, Heydon JA said at [144]:

“It is necessary that there be a minimalist interference with open justice to the extent of pseudonym orders in favour of the Witness. That is because without them the Witness reasonably fears death or physical injury, or alternatively an unnecessary loss of liberty. These are evils, which it is necessary to avoid by that degree of minimalist interference. Without the orders, the Witness is exposed to hurt, and the party calling him is faced with the risk of testimony proceeding from a person who is reluctant, but in a particular sense. Many witnesses, as the plaintiff pointed out, are reluctant, but few are reluctant because of fears for their lives, safety or liberty.”

42 In the blackmail, informer and extortion cases the justification for pseudonym orders is to ensure that crime can be effectively investigated and prosecuted. Unless protection is provided the administration of justice will be compromised. As Mahoney JA said in John Fairfax Group Pty Ltd v Local Court of New South Wales at 163:

“[T]he open conduct of the courts is not an end in itself: the principle is adopted because it is seen as a means of achieving the fundamental end, the proper administration of justice.”

43 The question in the present case is whether in relation to a person who it is submitted requires the protection of an APVO, a pseudonym order may similarly be justified. That question must be answered mindful of the fact that although the legislature has authorised the making of suppression orders, pursuant to s 562ZK of the Crimes Act, in relation to ADVO’s it has not done so in relation to APVO’s.

The submissions and resolution of the application

44 It was submitted by the respondents that because of the likelihood of publicity of the proceedings and possible harassment by the press it was in the interests of justice that the name of the complainant should be suppressed. It was submitted that it could be inferred from the media interest in the earlier proceedings (see John Fairfax Publications Pty Ltd v Ryde Local Court) that the media would be similarly interested in the current proceedings. It was said from the bar table that the media had camped outside Ms B’s house. However, there was no evidence that this had occurred nor that anything untoward had taken place.

45 It was submitted that because Ms O’Shane is a magistrate the media would have a heightened interest in the matter. It was further submitted that unless the publication of Ms B’s name was prohibited the knowledge that her matter had been given considerable publicity may deter others from bringing similar proceedings. The ultimate submission was that where the person complained of in AVO proceedings is well known, with the consequence that publicity is likely to follow, the interests of justice justifies the suppression of the complainant’s name.

46 There are two questions which require consideration. They are essentially related. The first question is whether the granting of a pseudonym order is necessary to secure the proper administration of justice. In the cases where an implied power to make pseudonym orders has been recognised – particularly those relating to blackmail, informers and extortion – the court has been satisfied that if an order were not made the consequence would be “unacceptable” (John Fairfax Group Pty Ltd v Local Court of New South Wales at 161). The consequences which have justified an order are the safety, livelihood or reputation of a victim or witness as a result of giving evidence in the proceedings. In the case of informers, revelation of their identities has been accepted as potentially undermining other investigations (including covert operations), posing a threat to their safety with the prospective prejudice to the prosecution of crime. In blackmail cases, if the identity of the “victim” is not protected they may be vulnerable to other “blackmailers” or reluctant to report the crime. By protecting the “victim” in one case the court encourages other incidents of blackmail in other cases to be reported.

47 To my mind the mere fact that publicity is unpleasant could not justify the suppression of a person’s identity. Keen or even intense interest by the media does not of itself compromise the administration of justice. Undoubtedly there are occasions when media interest results in unnecessarily intrusive behaviour by members of the press. However, there is no reason to assume that the press will act irresponsibly. If press behaviour imposes unacceptable intrusions, and as was suggested in submissions, may extend to trespass on Ms B’s property the police are available to provide appropriate protection. The essence of the submission was not that the interests of justice would be diminished if the public were aware of Ms B’s name but that the level of media interest in the matter may cause members of the press to wait outside Ms B’s home to capture photographs or try and gain an interview. Although if this was to occur it would no doubt be unpleasant, it cannot justify the court in intervening to confine the reporting of proceedings, including the names of the parties.

48 The courts will not add to the list of categories (John Fairfax Publications Pty Ltd v District Court of New South Wales at [19]) and the present case does not fall within any of the identified categories justifying a pseudonym order. The magistrate was informed that Ms B had suffered the scrutiny of the media in relation to the previous AVO including journalists “camped” outside Ms B’s premises “for approximately one month.” Her Honour said this was an unacceptable situation. For this reason her Honour concluded that unless a pseudonym order was made “it may operate to defeat the proper administration of justice.” The foundation for this conclusion appears to have been a concern that unless an order was made “persons in the future who have genuine grievances against persons in public office, may be deterred from doing so because of the conduct of the media.”

49 In my opinion this conclusion cannot be accepted. If this principle was adopted it would have the consequence that, without being publicly identified, a person under absolute privilege could make allegations against another person holding public office. Publicity would no doubt attend the making of the allegations and the person against whom they were made could be identified. The more sensational the allegations and the greater the prominence of the person against whom they were made the more likely they would be to attract publicity. Although an order may be made protecting the name of the “complainant” the person against whom the allegations are made will, of course, know the details of the allegation and the person making them. The prohibition from publication of the name of the complainant will be of no consequence as between the parties.

50 The inconvenience, irritation or distress which may be suffered by Ms B due to media scrutiny is not a consequence of a kind that would undermine the proper administration of justice in hearing and determining APVO applications. There are remedies available to Ms B should the press transgress acceptable levels of intrusion or break the law. In the words of Lord Widgery CJ in R v Socialist Worker Printers and Publishers Ltd; Ex parte Attorney-General at 644 it cannot be said that “experience shows that grave difficulty may be suffered in getting complainants to come forward” unless pseudonym orders are made.

51 The values inherent in the principle of open justice would be seriously compromised if parties were able to conceal their identities merely because of a heightened degree of media interest in the proceedings, aroused by the involvement of a person with a high public profile. It may be argued that in relation to proceedings which are of greater than usual interest to the public it may be more important, except in a most unusual case, that there be no impediment to the public being informed of all relevant aspects of the proceedings including the names of the parties and witnesses. In John Fairfax Group Pty Ltd v Local Court of New South Wales Kirby P said at 143:

“A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise, powerful litigants may come to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported.”

52 In R v Kwok Howie J said at [32]:

“It is important in light of the material relied upon by the prosecution to stress that it is the interests of justice that lie at the heart of such an application and not the interests of a private individual, such as a witness or an accused. The decided cases have emphasised the value of open courts to maintaining public confidence in the administration of justice. Open justice encompasses the right of the media to fully and frankly report cases before the courts, even at the expense of the personal feelings of those involved in judicial proceedings , including the innocent complainant.” ( emphases added )

53 In any event before an implied power to suppress the name and identity of a person is engaged, evidence is required. In John Fairfax Group Pty Ltd v Local Court of New South Wales (1991), Mahoney JA explained the limited circumstances in which the court would infer an unacceptable outcome justifying intervention. His Honour said:

“But it was suggested in argument for the media interests that there was no evidence that such consequences will flow in any extortion case and nothing to show that they would flow in the present cases. The submission was that it could not be concluded that such consequences would flow.
It has not been the practice of the courts to require evidence that the consequences conventionally attributed to, for example, the disclosure of names in blackmail, security or informer cases, will actually flow. The courts have inferred that they will. No doubt, if it were to be suggested in a particular case that they would not, that could be the subject of proof. The same position should, in my opinion, obtain in respect of extortion cases of the present kind: no reason has been suggested for a different approach.” (at 163)

54 Even if there was power to make the pseudonym order there was simply no evidence of the allegations relied upon to justify it. The issue raised before the magistrate fell outside any principle accepted by the law and if the court was to be asked to draw inferences as to the likely future conduct of the press evidence of facts from which those inferences could be drawn would be required. There was no evidence before the magistrate which entitled her Honour to draw any inference let alone one which justified the making of the order.

55 It was submitted to the magistrate that because the proceedings involved a fellow magistrate they must be determined by other than a New South Wales magistrate. Her Honour accepted the force of this submission but nevertheless proceeded to hear the application for a suppression order. Her Honour no doubt took this course because, as I have indicated, the matter of the suppression order had to be determined on that day if it was to have any utility.

56 The claimant repeated to this Court the submission made in the Local Court. It is unnecessary for me to resolve the issue. However, I am inclined to the view that the magistrate had no alternative but to exercise the jurisdiction.

Conclusion

57 It follows that both because there was no power and because of the lack of any evidence the pseudonym order made by the magistrate should be quashed. Accordingly, I am of the opinion the following orders, pursuant to s 69 of the Supreme Court Act 1970 (NSW), should be made:

1. The pseudonym order made in relation to the identity of Miss Armstrong is quashed.
2. I order the 2nd and 3rd opponents to pay the claimant’s costs.
3. Direct that the 2nd and 3rd opponents may, if qualified, have a certificate under the Suitors’ Fund Act.

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