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P v D1 [No 3]

P v D1 [No 3]

Case [2010] NSWSC 644 2 June 2010

Admissibility of Evidence

Legal Privilege

Public Interest Immunity

Evidence Law

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading P v D1 [No 3]

Details

AGLC: P v D1 [No 3] [2010] NSWSC 644
Case: [2010] NSWSC 644
Decision Date: 2 June 2010

CaseChat Overview and Summary

The parties involved in the case were P, the applicant, and D1, the respondent. The dispute centred around the access to the court file and whether the public interest immunity justified the withholding of information from disclosure. The case was heard in the Federal Circuit Court of Australia. The applicant sought access to the court file, which was denied by the respondent. The applicant challenged this decision, arguing that the non-disclosure of the information would impede the investigation and detection of crime.

The legal issues that the court was required to decide were whether the public interest immunity was a proper basis for making a non-publication order over the Court file and whether the restriction on publication was justified. The court had to consider whether the information in the court file was necessary to assist in the investigation and detection of crime and whether the denial of useful information to criminals about police enquiries or which would impede those enquiries was justified.

The court found that the public interest immunity was a proper basis for making a non-publication order over the Court file. The court also found that the restriction on publication was necessary to assist in the investigation and detection of crime. The court concluded that the information in the court file was subject matter of the proceedings and was woven into the fabric of the current police investigation. The court found that the non-disclosure of the information was justified on the basis that it was necessary to prevent the disclosure of useful information to criminals about police enquiries or which would impede those enquiries. The court denied the applicant's request for access to the court file.

No further orders were made by the court. The decision of the court was that the public interest immunity was a proper basis for making a non-publication order over the Court file and that the restriction on publication was justified. The court's decision was based on the need to protect the ongoing police investigation and to prevent the disclosure of useful information to criminals about police enquiries or which would impede those enquiries.

Orders