P v D1 [No 3]

[2010] NSWSC 644

Reported Decision: 202 A Crim R 40

New South Wales

Supreme Court

CITATION:	P v D1 & Ors [No 3] [2010] NSWSC 644
HEARING DATE(S):	9/10/09, 23/10/09, 28/10/09, 29/10/09,04/11/09, 06/11/09, 26/11/09, 11/12/09, 17/12/09, 2/06/10
JUDGMENT DATE :	2 June 2010
JURISDICTION:	Equity
JUDGMENT OF:	Slattery J at 1
DECISION:	See paragraphs 37 & 38 of judgment.
CATCHWORDS:	PROCEDURE - access to court file - access denied - public interest immunity found to justify the withholding information in court file from disclosure - non disclosure justified on basis of denial of useful information to criminals about police enquiries or which would impede those enquiries - restriction on publication on the basis that it is necessary to assist in the investigation and detection of crime - proper basis for making a non-publication order over Court file - access denied notwithstanding the Court's file records what happened in open court - extremely rare case - subject matter of the proceedings woven into fabric of current police investigation
CATEGORY:	Consequential orders
CASES CITED:	Attorney-General For New South Wales v Stuart (1994) 34 NSWLR 667 Beneficial Finance Corporation Ltd v Commissioner of Australian Federal Police (1991) 52 A Crim R 423 Brennan v State of New South Wales [2006] NSWSC 167 Commonwealth v Northern land Council (1993) 176 CLR 604 Conway v Rimmer (1968) AC 910 D v National Society for the Prevention of Cruelty to Children [1978] AC 171 Director of Public Prosecutions v Smith (1996) 86 A Crim R 308 John Fairfax & Sons v Police Tribunal of New South Wales (1986) 5 NSWLR 465 John Fairfax Publications Pty Ltd and Anor v District Court of New South Wales and others [2004] NSWCA 324 McPherson v McPherson (1936) AC 177 New South Wales Commissioner of Police v Nationwide News Pty Ltd [2007] NSWSC 366 R v Fandakis [2002] NSWCCA 5 R v Kwok; R v Ong; R v Tan; R v Yoe (2005) 64 NSWLR 335 Western Australia v Christie (2005) 30 WAR 514 Young v Quin (1985) 4 FCR 483
PARTIES:	P- Plaintiff D1- First Defendant D2- Second Defendant D3- Commonwealth Bank of Australia D4- Fourth Defendant Applicant - John Fairfax Media Publications Pty Ltd Respondent - Commissioner of Police
FILE NUMBER(S):	SC 05/1290
COUNSEL:	Plaintiff-Mr T Kerr First & Second Defendant- Mr D Hayes Third Defendant- No appearance Fourth Defendant- No appearance Applicant- Mr M Polden Respondent- Ms M England
SOLICITORS:	Plaintiff- Henry Davis York First & Second Defendant- Hayes Partners Third Defendant- No appearance Fourth Defendant- No appearance Applicant- Johnson Winter & Slattery Respondent- Crown Solicitor

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

SLATTERY J

WEDNESDAY 2 JUNE 2010

1290/05 P v D 1 AND OTHERS [NO 3]

JUDGMENT

1 HIS HONOUR: This is my third judgment in these proceedings. My previous judgments were given on 28 October 2009 and 17 December 2009: P v D1 & Ors [2009] NSWSC 1492 and P v D1 & Ors [No 2] [2009] NSWSC 1493. The nature of the application for access to the Court file in these proceedings is sufficiently described for present purposes in those two prior judgments. The proceedings before the Court were either mentioned or argued for short periods on 9 October 2009, 23 October 2009, 28 October 2009, 29 October 2009, 4 November 2009, 6 November 2009, 26 November 2009 and 11 December 2009. Further written submissions were received after that date and I reserved judgment in the matter on 21 December 2009. The applicant in the proceedings seeks access to the Court file and the respondent resists that access on public interest immunity grounds. Neither the applicant nor the respondent are parties to the proceedings. The parties to the proceedings have not played a role in the contest on this application.

2 The application before the Court is made by means of the form of application provided for in Practice Note SC Gen 2 “Access to Court Files” effective 1 March 2006. The application is dealt with as an application for the leave of the Court provided for under that Practice Note. Both applicant and respondent adduced evidence on the application which is referred to in the course of this judgment.

Decision

3 Mr Polden has put the applicant's argument fairly and comprehensively but his argument fails for reasons related to unusual features of this case. He put in paragraph [25]-[27] of his written submissions the main propositions of the argument that he elaborated orally.

“25. The immunity contended for in the instant case appears to depend upon the proposition that a concatenation of material in documents dealt with four years ago in open court, which cannot as a matter of logic disclose current police enquiries, which has already been publicly disclosed, and which is not of itself confidential, when taken together with the subsequent fact of [the deceased's] murder and related police investigation, falls into the same category as the disclosure of contemporaneous sworn informations relied upon by police in order to obtain search warrants. The analogy is strained.

26. The cases relied upon by [the respondent] do not support the existence of a general category of public interest immunity based on interference with police investigations, not involving any issue of police informants, which extends to documents not themselves created by police, or documents which do not (and cannot possibly, in the instant case) disclose current investigations.

27. To accede to [the respondent's] application, particularly as it relates to orders made in open court, would be a grave step which - no matter how undesirable or potentially beneficial it might be seen to be - involves an apparent and quite unacceptable extension of the exception to the principle of transparency enshrined in SC Gen 2.”

4 It is necessary to analyse the steps in this argument to assess its merits.

Public interest immunity and police investigations

5 The first step in the applicant's argument is the submission that the respondent has wrongly claimed a non-existent public interest immunity, to the extent the claim is said to be based on the protection of current police investigations not involving issues of police informants.

6 The difficulty with this submission is that high authority in this State does support the existence of such immunity. In Attorney-General For New South Wales v Stuart (1994) 34 NSWLR 667. at 675B-D and 680D-681E, a decision of the Court of Criminal Appeal, Hunt CJ at CL, in a judgment agreed in by Studdert J, accepted the existence of a distinction between the particular public interest in protecting the identity of police informers and a broader public interest in the maintenance of social peace and order (D v National Society for the Prevention of Cruelty to Children [1978] AC 171). His Honour identified that parts of that broader public interest may justify the nondisclosure of material related to continuing police enquiries. His Honour said (at 675B-D):

“This particular public interest in protecting the identity of police informers appears to be part of a broader public interest, the maintenance of social peace and order, as it is described in D v National Society for the Prevention of Cruelty to Children (at 231). As another part of that broader public interest, it is essential that nothing used by police in their pursuit of criminals should be disclosed which may give any useful information concerning continuing inquiries to those who organise criminal activities: Conway v Rimmer (at 953-954); or which may impede or frustrate the police in that pursuit: ibid (at 972); or which may reveal matters to the prejudice of future police activities: Young v Quin (1985) 4 FCR 483 at 492; 59 ALR 225 at 234; Beneficial Finance Corporation Ltd v Commissioner of Australian Federal Police (1991) 52 A Crim R 423 at 436-437; and on appeal (1991) 31 FCR 523 at 527-528; 103 ALR 167 at 172; 58 A Crim R 1 at 5. Its rationale is that, if such information were disclosed prior to charges being laid (so that criminals would know what information the police have about them), they will be able to tailor their stories to facts which cannot be disputed, to organise their responses to questions and to arrange alibis. Harm may come or be threatened to prospective witnesses before being interviewed by the police, particularly in relation to inquiries about crimes of violence.”

His Honour's reasoning at 680D to 681E also assumes the availability of this category of public interest immunity.

7 This passage makes clear for the present application that nondisclosure under this category of public interest immunity may mean that "nothing used by police in their pursuit of criminals should be disclosed” if the disclosed material "may give any useful information concerning continuing enquiries to those who organise criminal activities" (emphasis added). His Honour's reasoning extends possible nondisclosure beyond police notes of investigation, or other documents created by police, to things being “used” by the police to further their enquiries. Thus the applicant's suggested limitation on this public interest immunity that it does not extend beyond police created documents, is not a recognised limitation. Although the contents of the Court file are plainly not created by the police, the Court file itself or the information within it can still be something used by the police in their pursuit of criminals. That is the unusual feature of this case. The respondent is saying that the precise combination of relationships between people and the events in which those people were involved as recorded in the Court’s file is something being used by police in their pursuit of criminals.

8 The decision of Hunt CJ at CL in Attorney-General For New South Wales v Stuart (1994) 34 NSWLR 667 relies upon and is supported by other authority to the same effect: Young v Quin (1985) 4 FCR 483 and Beneficial Finance Corporation Ltd v Commissioner of Australian Federal Police (1991) 52 A Crim R 423 and on appeal (1991) 31 FCR 523, New South Wales Commissioner of Police v Nationwide News Pty Ltd [2007] NSWSC 366 at [35], Western Australia v Christie (2005) 30 WAR 514 at 522-3 and Conway v Rimmer (1968) AC 910. Although, as the applicant points out, the documents in issue in Beneficial Finance were created by police in the course of a current investigation and revealed the names of witnesses to whom they had spoken, the reasoning in the case is not confined to documents that only have that feature.

9 Thus the applicant's first step in argument fails. There is a head of public interest immunity, which would justify the withholding from disclosure of information which would give useful information to criminals about police enquiries or which would impede those enquiries.

The Immunity and the Courtroom

10 But R v Stuart was not a case about a Court file or the disclosure of information in the courtroom. It was a case about whether documents in respect of which the immunity was claimed could be produced under subpoena and made available for use in open court. Here the Court’s file does certainly record affidavits that have already been read in open court and court orders that were made in open court. That feature of this case led the applicant to advance its argument a slightly different way, which was the second step in its argument.

11 The applicant submitted that in contrast to the "general category" of public interest immunity being relied upon by the respondent, when it comes to the disclosure of the court’s record of what has already happened in open court, the matter should be approached differently. The correct approach it was submitted is not just to look at the case as one of a claim for public interest immunity but rather to consider whether there was to be found in this case one of the recognised exceptions to the open justice principle. I accept the correctness of this approach but not the conclusion for which the applicant contends.

12 I agree that when the application is for access to a court file under Practice Note SC Gen 2 or for an order restricting the publication of evidence already given, that the following principles apply. The fundamental rule is that the administration of justice must take place in open court; and nothing should be done to discourage the making of fair and accurate reports of events in the courtroom; and 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: John Fairfax & Sons v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476-7 per McHugh JA and John Fairfax Publications Pty Ltd and Anor v District Court of New South Wales and others [2004] NSWCA 324. To the extent that exceptions have developed under the general law to the principle of open justice those exceptions are few and strictly defined: McPherson v McPherson (1936) AC 177 and John Fairfax Publications Pty Ltd and Anor v District Court of New South Wales and others [2004] NSWCA 324 at [19]. Whilst the power to make a pseudonym order has been recognised as an available device in respect of certain witnesses (see R v Smith (1996) 86 A Crim R 308) that recognition does not authorise the making of a pseudonym order beyond the accepted categories of departure from the general rule of open justice.

13 The Court's powers extend to making non-publication orders that are necessary for the administration of justice: John Fairfax & Sons v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476-7 per McHugh JA. The non publication order should not be made unless it is really necessary to secure the proper administration of justice in the particular proceeding: New South Wales Commissioner of Police v Nationwide News Pty Limited and Anor [2007] NSWCA 366 at [47]. These powers also embrace orders designed to suppress the further dissemination of information that may already have to some degree got into the public domain or have been referred to in open court without there having been an earlier order addressing the confidentiality issues; but the Court will avoid making orders that are futile: New South Wales Commissioner of Police v Nationwide News Pty Limited and Anor [2007] NSWCA 366 at [43]. An established basis of public interest immunity will trump the open justice principle but no more than is really necessary to protect the subject matter of the immunity: New South Wales Commissioner of Police v Nationwide News Pty Limited and Anor [2007] NSWCA 366 at [52]. Other principles related to the assessment of evidence on such claims are considered later.

14 The applicant submitted that these exceptions are limited to cases of the informer or the security officer, victims of extortion or blackmail or matters of national security. It was further submitted that the present case did not fall into one of these recognised categories and should be disallowed on that ground. It is said there are only a limited number of recognised categories of exception to the principle of open justice recognised in the cases and in Practice Note SC Gen 2.

15 A contest took place between the parties as to whether or not there is a limited number of exceptions to the open justice principle involving only police informers, witnesses who might be physically harmed, blackmail victims and national security issues. The applicant emphasised the limited situations in which earlier authority suggested non disclosure orders would be made in order to preserve the principle of open justice. The argument was that the respondent’s claim to immunity did not fall within any of these established categories.

16 This argument breaks down in the face of two modern authorities in the Court of Appeal in this state. The first of these authorities is New South Wales Commissioner of Police v Nationwide News Pty Ltd (2008) 70 NSWLR 643; [2007] NSWCA 366; where Mason P said at [37]:

“I am aware of no authority justifying any closed list of situations or any restricted application of the principles of public interest immunity when they bear upon decisions referable to the closure of a court or the making of a non-publication order. If the disclosure of any information can be demonstrated to be harmful to the public interest, properly understood, then a court’s power to frame a protective order otherwise falling within its jurisdiction will be engaged (see The Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 51–2).”

17 The learned president specifically adverted to the authorities such as Attorney-General For New South Wales v Stuart (1994) 34 NSWLR 667 that accepted that the integrity of police investigations and the safety of persons involved with them were topics capable of attracting the immunity and that such issues stand outside the traditional list of categories: New South Wales Commissioner of Police v Nationwide News Pty Limited and Anor [2007] NSWCA 366 at [35].

18 But the other authority which explains that there is not a closed list of situations in which principles of public immunity can be used to justify a non publication order is John Fairfax Publications Pty Ltd and Anor v District Court of New South Wales and Others [2004] NSWCA 324, R v Kwok; R v Ong; R v Tan; R v Yoe (2005) 64 NSWLR 335 in which Hodgson JA said at [12]-[16]:

“12. I accept that 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: John Fairfax v District Court .

13. However, the requirement of necessity is not to be given an unduly narrow construction. I respectfully adopt what was said by Mahoney JA in John Fairfax Group v Local Court at 161B:

“This leads to the consideration of what is meant by "necessary to secure the proper administration of justice" in this context. The phrase does not mean that if the relevant order is not made, the proceedings will not be able to continue. Plainly they can. If the name of an informer is not hidden under a pseudonym, the proceeding will go on: at least, the instant proceeding will. And if the name of a security officer is revealed, the administration of justice or of the country will not collapse. The basis of the implication is that if the kind of order proposed is not made, the result will be - or at least will be assumed to be - that particular consequences will flow, that those consequences are unacceptable, and that therefore the power to make orders which will prevent them is to be implied as necessary to the proper function of the court. 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 restrictive 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.”

14. There are recognised categories in which the publication of names may, as a matter of necessity, be prohibited, namely informers, victims of extortion and particularly blackmail, and where it is necessary for national security. The order actually made in the case of one witness in this case was made on the basis that she was an informer: although her identity was known to the accused persons, this witness was in prison and could be subject to victimisation in prison otherwise than through the knowledge of the accused, if it became known she was an informer. The primary judge accepted that this was sufficient to base an order, and distinguished her case from that of the other witnesses.

15. Mr. Ierace relied on the statement made by Spigelman CJ, concurred in by Handley JA and M.W. Campbell AJA, in John Fairfax v District Court at [19], that it was well-established that the exceptions to the principle of open justice are few and strictly defined, and that the Court will not add to the list of exceptions. Mr. Ierace also referred to Spigelman CJ’s reference at [48] and [49] to the limited categories of cases in which non-publication orders can be made, and submitted that this case was not in any of those categories. He conceded in that case Spigelman CJ then undertook the task of looking independently of whether the orders made in that case were justified by necessity; but submitted that the matter relied on in this case fell far short of what could justify the orders on that basis.

16. I accept that 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.”

19 The Court of Criminal Appeal re-stated the principle that closely analogous categories may be considered in Attorney-General for NSW v Nationwide News Pty. Limited & Anor [2007] NSWCCA 307 at [29]-[40] per Hodgson JA. His Honour there said that a restriction on publication could be justified not just by showing that it comes within one of the particular categories of exception to the open justice principle “but by directly showing that restriction on publication is necessary for the administration of justice” at [33]. His Honour then held importantly for the present case that at [38]:

“ I am prepared to hold that the “administration of justice” can extend to the investigation and detection of crime, and the obtaining of evidence against suspects, and also that the protection of this aspect of the administration of justice is one main reason for the protection of the identity of informers.”

20 In my opinion in this case a restriction on publication on the basis that it is necessary to assist in the investigation and detection of crime is a proper basis for making a non-publication order over the Court file.

Prior Public Disclosure

21 The third step in the applicant’s argument is the factor that there has been prior disclosure in open court of the orders made in these proceedings and at least some of the evidence that has been read. At the time that argument took place between the parties the Court was not able to determine from the Court file what evidence had or had not been read. The transcript now available reveals that when injunctive relief was initially sought before Hamilton J on Tuesday 1 February 2005 that two affidavits handed up in Court that day and sworn that day were read. It is not clear from my analysis of the other transcripts available that any other evidence was ever read in the proceedings other than an affidavit by a solicitor, Mr Hayes dated 1 March 2005 which was read on 2 March 2005. The applicant asks the question how can a record of something said in open court now be the subject of a non-publication order?

22 The answer is the occurrence of a crime which involves at least one of the participants in these proceedings and where the subject matter of the proceedings is the subject of a police investigation in relation to that crime. The respondent relies upon cases that say the public interest immunity can apply to prevent disclosure of information that has been given in open court in appropriate circumstances: Brennan v State of New South Wales [2006] NSWSC 167 at [41] and Director of Public Prosecutions v Smith (1996) 86 A Crim R 308 and R v Fandakis [2002] NSWCCA 5. Also in his open affidavit of 5 November 2009, Mr David William Hudson says that he claims public interest immunity because the crime “and the resulting police investigation have created a public interest in non-disclosure that did not previously exist”.

23 The same conclusion can be reached by logic, quite apart from authority. This is an extremely rare case in which the subject matter of the proceedings is woven into the fabric of the alleged criminal conduct being investigated by police. It is difficult to postulate many other circumstances quite like it. On its face the Court file contains in one place the only comprehensive historical account of events and persons which are now the subject of direct police investigation. Although the file records what was said in public, the precise information in the Court’s file has a claim to public interest immunity that it did not have when parts of it were published in open court. This is in my view a situation qualified to attract the exercise of discretion in Practice Note SC Gen 2 that documents that record what was said or done in open court or record what was admitted into evidence “should be kept confidential” in respect of all other matters not published previously. It is a case where “exceptional circumstances exist” within the Practice Note such as would warrant denial of access.

Assessing the Evidence

24 In this case the court received two confidential affidavits of David William Hudson dated 5 and 16 November 2009. In accordance with accepted principles these two confidential affidavits were not made available to the applicant: Commonwealth v Northern land Council (1993) 176 CLR 604 at 620. The authorities require the Court to give close scrutiny to claims for the public interest immunity: New South Wales Commissioner of Police v Nationwide News Pty Limited and Anor [2007] NSWCA 366 at [35] per Mason P. It is necessary to determine whether the confidential affidavit adequately states the grounds on which it is contended that the material was subject of the public interest immunity claim should not be disclosed: Sankey v Whitlam (1978) 142 CLR 1 at 96 per Mason J. I have scrutinised it for this purpose. When assessing the necessity for the making of a nondisclosure order on public interest immunity grounds the court should only act on material upon which can reasonably reach the conclusion that it is necessary to make the order: John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 477

25 It is difficult but not impossible to give the conclusions of my analysis of the confidential affidavits in evidence without revealing the content of that evidence. So this judgment can inform the parties but ultimately be published, writing at this level of generality is what is required. The following can be said about the confidential evidence and why, in my opinion, it does displace the principle of open justice in this case.

26 First, the evidence relates to predictable prejudice to an actual investigation. The confidential affidavit explains the lines of enquiry of the current investigation and the connection of those lines of enquiry with these proceedings. The evidence identifies a range of people who are the subject of investigation and who might be expected to take advantage of the disclosure. The evidence is not left at the level of vague belief on the part of the deponent.

27 Secondly, the evidence given in the confidential affidavit is sufficiently related to the contents of the Court’s file in these proceedings that the Court can infer that the contents of the file do relate to the police investigation explained by the deponent in the confidential affidavit.

28 The confidential affidavit of David William Hudson of 16 November 2009 sets out in paragraphs 13-17 direct and concrete harm to persons and interference with a current police investigation. That is in my opinion, reasonable and realistic evidence based upon the background of the same and previous affidavits of this deponent.

Material in the Public Domain Already

29 The applicant also argues that much of the material that it expects to be in the Court’s file is already the public domain and the making of any further nondisclosure order would be futile. The applicant’s argument is to be addressed at the level of legal principle and on the facts.

30 First at the level of legal principle the Court's power to make a non-publication order in a public interest immunity case embraces the making of orders designed to suppress further dissemination of information that has to some degree already entered the public domain through having been referred to in open court and without there having been an earlier order addressing the confidentiality issues: New South Wales Commissioner of Police v Nationwide News Pty Limited and Anor [2007] NSWCA 366 at [43] per Mason P.

31 The applicant has read a number of affidavits setting out material that is in the public domain that overlaps with aspects of the police investigation and principally the affidavits of Peter Kerr of 4 December 2009 and Ann Lakiri of 6 November 2009. A dominant characteristic of the material in those affidavits is that it involves some speculation about the police investigation, none of which is confirmed from any proper authoritative or objective source. The difficulty with disclosure of the material in the Court’s file is that it may convert what is currently left at the level of speculation into something more concrete and thereby cause the adverse consequences referred to in the confidential affidavits. In addition placing the detailed material in the Court file together with information about the respondent's interest in it in the public domain will have the predictable effect upon or elicit the predictable behaviour from persons close to this investigation.

32 Although as my judgment of 17 December 2009 indicates, there has been some limited disclosure to the parties to these proceedings of the application by the applicant and the position taken by the respondent, that disclosure was at such an early stage of this contested application that it does not appear to me to affect the determination that is now being made.

Scope of the Orders

33 The scope of the orders that the Court makes, even if satisfied that in a particular case a public interest immunity claim trumps the principle of open justice, is important, as the order made should be no wider than is necessary to protect the administration of justice.

34 I only propose to make the order for a limited period of time. The basis of the Court’s order is continuing police investigations into the commission of a crime. These investigations have now been going on for approximately 8 months. They may continue. They may terminate in one of several ways. It should not in my view merely be assumed that the respondent’s public interest immunity claim made in David William Hudson's affidavits sworn in November 2009 will simply continue into the unlimited future until further order. The condition of its continuation will be that the respondent will be required within 21 days and thereafter at least every six months to file an affidavit indicating whether the investigation referred to in David William Hudson's affidavits is still continuing and that the subject matter of that investigation still justifies the claim for public interest immunity privilege in respect of the content of the Court’s file in this matter.

A Note on Form and Publication and Costs

35 This judgment has been written in a manner, which should permit its publication without the need for further nondisclosure orders relating to its contents. The parties may nevertheless take the view that some less than full publication of its contents is required. Any applications in respect of that issue are encompassed within the scope of the liberty to apply granted in the court's orders.

36 I will reserve questions of costs for further argument. The usual principle is that costs follow the event unless the court is satisfied that some other order should be made. The respondent on the motion for access to the file has been substantially successful. Unless the applicant wishes to argue that some other order should be made, when short minutes of order are finalised, I will make an order for costs in the respondent's favour.

Conclusions and Orders

37 In the result therefore I have upheld the respondent's argument that the court file should not be disclosed to the applicant in whole or in part upon the ground that the principle of open justice is displaced in the circumstance set out in the confidential affidavits of David William Hudson of 5 and 16 November 2009 by the respondent's claim for public interest immunity privilege.

38 The Court makes the following orders and directions.

a Direct the parties within seven days to bring in short minutes of order giving effect to these reasons.
b Otherwise continue the existing interlocutory orders including order 2 made on 17 December 2009 and noting that this judgment is presently covered by existing non-publication orders.
c Grant liberty to apply
d Reserve costs.

Short Minutes of Order

39 The parties brought in short minutes of order on 16 June 2010 giving effect to this judgment. The following final orders were made in the proceedings on 16 June 2010.

On 16 June 2010, the Court orders that:

1. Pending further order, the application to the Court by John Fairfax Media Publications Pty Limited dated 9 October 2009 for leave to access Court file no. 1290/05 (“the Fairfax application’) is refused.

2. The Commissioner of Police is directed to file updating evidence as to whether the claim of public interest immunity is still maintained in relation to the contents of Court file no. 1290/05, and to arrange to have the proceedings relisted, at the following intervals:
(a) or by 22 June 2010; and

(b) thereafter, at least every six months.

3. The Comissioner of Police is directed to:

(a) serve on the representatives of John Fairfax Publications Pty Limited any affidavit or affidavits filed pursuant to Order 2 to the extent consistent with the claim of public interest immunity on or by the date of filing of such evidence; and

(b) notify the representatives of John Fairfax Publications Pty Limited of any proposed relisting of the matter pursuant to Order 2 a reasonable time before that relisting.

4. Pending further order, and subject to Orders 5 and 6,t here shall be no disclosure of the names of the parties to the proceedings (with the exception of the name of the third defendant, the Commonwealth Bank of Australia and John Fairfax Media Publications Pty Limited and the Commissioner of Police) or of the subject matter of the proceedings for principal relief, or any information derived therefrom, save for the proper conduct of the proceedings.

5. Order 4 shall not prohibit:

(a) any disclosure of the names of the parties to the proceedings that refers to the plaintiff by the pseudonym ‘P', the first defendant by the pseudonym ‘D2’ and the fourth defendant by the pseudonym ‘D4’;

(b) any report of the interlocutory proceedings on 9 October, 23 October, 28 October, 29 October, 4 November, 6 November, 26 November 2009 or 11 December 2009 that refers to the plaintiff by the pseudonym ‘P'’ the first defendant by the pseudonym ‘D1’, the second defendant by the pseudonym ‘D2’ and the fourth defendant by the pseudonym ‘D4’;

(c) the disclosure of the fact that [the proponent] was associated with a party to these proceedings; or

(d) publication of the judgment of the Court dated 17 December 2009 in the form annexed and marked “A”, publication of the judgment of the Court dated 28 October 2009 in the form annexed and marked “B” and publication of the judgment of the Court dated 2 June 2010 in its entirety.

6. Order 4 shall not prohibit disclosure of the true names of the parties to the proceedings or of the subject matter of the proceedings for principal relief (or any information derived therefrom) by the parties and their legal representatives, in communications between the parties, between the parties and their legal representatives , and between legal representatives for the parties, where those communications are related to the substantive or the interlocutory proceedings.

7. All previous interlocutory orders of the Court in relation to the Fairfax application be vacated.

8. That the applicant, John Fairfax Media Publications Pty Limited, pay the costs of the Commissioner of Police in relation to the Fairfax application in an amount to be agreed or assessed.

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