PQR v Secretary, Department of Justice and Regulation (No 1)
[2017] VSC 513
•26 September 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2016 03347
| PQR | Applicant |
| v | |
| SECRETARY, DEPARTMENT OF JUSTICE AND REGULATION | Respondent |
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JUDGE: | Bell J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 & 24 February, 2 & 7 March and 6 & 11 April 2017 |
DATE OF JUDGMENT: | 26 September 2017 |
CASE MAY BE CITED AS: | PQR v Secretary, Department of Justice and Regulation (No 1) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 513 |
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PRACTICE AND PROCEDURE – appeal from orders of Victorian Civil and Administrative Tribunal – suppression order sought preserving anonymity of applicant and family to protect family from distress and embarrassment – applicant contended he would be reasonably deterred from participating in proceeding if no order made – whether necessary to prevent real and substantial risk of prejudice to proper administration of justice – whether enforcement of existing pseudonym order represented reasonably available other means of doing so – contempt of court – whether news media organisation free to publish name of applicant despite pseudonym order where his identity was independently ascertained – whether doing so would frustrate purpose of order - presumption in favour of disclosure of information – principles of open justice and free communication of information – relationship between suppression orders and pseudonym orders – inherent jurisdiction of court to make such orders – application of Open Courts Act 2013 (Vic) to making suppression orders – ‘pseudonym order’, ‘proceeding suppression order’ – Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148(1), Working with Children Act 2005 (Vic) ss 13(2) and 26B(1), Open Courts Act 2013 (Vic) ss 4, 13, 17 and 18, Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 7(2), 15 (2) and (3) and 24(1) and (2).
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APPEARANCES: | Counsel | Solicitors |
| For the applicant | Ms K Walker QC with Ms J Taylor | Victoria Legal Aid |
| For the respondent | Mr W Alstergren QC with Mr P Panayi | Solicitor for Department of Justice and Regulation |
| For The Herald and Weekly Times Pty Ltd | Ms S McGeoch | Macpherson Kelley Lawyers |
HIS HONOUR:
In the primary proceeding under s 148(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the applicant has applied for leave to appeal and, if it is granted, appeals against a decision of the Victorian Civil and Administrative Tribunal. That decision was to refuse to grant him a notice under s 26B(1) of the Working with Children Act 2005 (Vic) assessing him to be a person suitable to undertake child-related work. My judgment in that proceeding is to be found in PQR v Secretary, Department of Justice and Regulation (No 2).[1] This is my determination of the application of the applicant for a suppression order under s 17 of the Open Courts Act 2013 (Vic).
[1][2017] VSC 514 (26 September 2017).
The applicant was convicted of criminal charges, most recently in 2012 in relation to large-scale drug trafficking. In view of his plea of guilty and excellent prospects for rehabilitation, he was sentenced to imprisonment for six years with a minimum term of two years. He was a model prisoner and released on parole in 2014, which will end in 2018. Since being released, he has made very strong steps towards full rehabilitation. Among other things, he has undertaken study, and is undertaking further study, now at university, to become an exercise physiologist. To complete these studies, he will need to obtain a practical training placement, which will likely place him in contact with children. Thereafter he wishes to have the option of working with children in sporting and related fields. To undertake child-related work, he must apply for a working with children check and obtain an assessment notice under the Working with Children Act. When the Secretary of the Department of Justice and Regulation refused to accept that he was suitable, he applied to VCAT for a review of the Secretary’s decision. When VCAT refused that application, he appealed to this court on grounds of error of law.
For the purpose of ensuring open justice and freedom of expression, there is a fundamental principle of the common law of great antiquity that, first, proceedings in courts (and now tribunals) are presumptively open to the public and news media organisations, which includes information about the names of parties, witnesses and other persons involved and, second, that information about the proceeding can be freely communicated. Only exceptionally is it ordered otherwise. By way of such exception, both VCAT and this court have made orders that the applicant is to be known in the proceeding in both jurisdictions by a pseudonym, in this court ‘PQR’. The primary basis for the making of these orders was not that the applicant himself needed anonymity. The basis was that the applicant would be reasonably deterred from accessing justice by commencing the proceeding in VCAT and the appeal in this court if his present and former partner and her and their children were to suffer distress and embarrassment by reason of him being identified.
The Herald and Weekly Times Pty Ltd is legitimately interested in the applicant’s application in VCAT and appeal to this court because his is a case of a person with convictions for serious criminal offences, including drug-related offences, seeking to work with children and while on parole. It has published articles both in print and online about VCAT’s decision and the appeal in this court.
Although Herald and Weekly Times appears to have independently ascertained the applicant’s identity, it has not yet used his real name (or photograph) in any publication relating to the proceedings. There is dispute between the parties and Herald and Weekly Times about whether, as a matter of law, the pseudonym order in this court prevents it from doing so. The applicant contends that it probably would, and the Secretary contends that it actually would, be contempt of court for Herald and Weekly Times to do so. To the contrary, Herald and Weekly Times contends that it would not be contempt of court to do so, where it has independently discovered the applicant’s real name. To remove any doubt about the scope and effect of the pseudonym order, the applicant has applied for the suppression order.
The court’s determination of the application for the suppression order raises issues concerning the relationship between pseudonym orders and suppression orders under the Open Courts Act, the balance struck under the common law and that Act between freedom of expression and access to justice, and the obligation of news media organisations under the law of contempt not to frustrate the purpose of orders of the court that preserve the anonymity of parties, witnesses and others involved in legal proceedings. These issues are particularly important because freedom of expression and fair and public hearings before courts and tribunals are human rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic).
Application for suppression order
The court directed that the applicant’s application for a suppression order in this court be made on notice under s 10(1) of the Open Courts Act. It ensured that notice of the application was given to news media organisations pursuant to s 11(1). Herald and Weekly Times appeared at the hearing of the application and opposed it. The Secretary neither consented to nor opposed the application but made submissions that were of assistance to the court highlighting certain difficult issues with the application and suggesting a way forward.
Ginnane J made the pseudonym order in this court on 5 August 2016 before the primary proceeding was commenced. The main terms of that order were:
(1)The Appellant commence proceedings against the Secretary of the Department of Justice and Regulation (‘the proceedings’) as proposed without divulging the name of the Appellant and in lieu using the pseudonym ‘PQR’.
His Honour also made orders under r 28.05(2) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) making certain documents in the file confidential.
The applicant sought the pseudonym order because he (it is common ground that his gender is male) has an unusual first name and surname. This was the basis of his fear that, should his name be published in relation to the proceeding, his family might be subject to distress and embarrassment. This would have deterred him from commencing the proceeding in this court.
The applicant had the same concerns in relation to the proceeding before VCAT. Upon the basis of evidence supporting those concerns, he made an application for an order restricting access to the file, a pseudonym order and a suppression order. The applicant’s concerns were accepted and, on 21 April 2016, VCAT determined to make the tribunal file confidential under s 146(4) of the Victorian Civil and Administrative Tribunal Act, a pseudonym order, and a suppression order under s 17 of the Open Courts Act.
As discussed more fully in my judgment in the primary proceeding, VCAT went on to dismiss the application of the applicant for an assessment notice under the Working with Children Act, also on 21 April 2016. The originating motion commencing the appeal in this court was issued on 18 August 2016. This gave rise to an application under s 148(5) of the Victorian Civil and Administrative Tribunal Act for extension of the period of 28 days within which, under s 148(2)(a), applications for leave to appeal must be made. The delay was largely explained by the desire of the applicant to be confident that an appeal proceeding in this court would not lead to his family being identified by reason of publication of his unusual name. He sought legal advice about that issue.
Upon that advice, the applicant made application to this court for the pre-commencement pseudonym order, which was heard and determined by Ginnane J. After considering the evidence presented and submissions made on behalf of the applicant and the Secretary (who did not oppose the application), his Honour made the order in the above terms, issuing a confidential ruling explaining why. It was upon this basis that the applicant commenced the appeal proceeding in this court. Ginnane J made the pseudonym order in the exercise of the court’s inherent jurisdiction under the common law. As I discuss below, the Open Courts Act did not govern the application because a pre-commencement pseudonym order is not a suppression order. Notice of the application was not required to be given, and was not given, to Herald and Weekly Times. However, the applicant’s application in this court for a suppression order is so governed.
In his evidence in support of the application before Ginnane J, the applicant made clear to his Honour that he would not commence an appeal proceeding in this court unless his family’s privacy was protected by such an order. As the confidential ruling issued by his Honour indicates, the purpose of the order was to remove that barrier to the applicant exercising his right to access the court by ensuring that, if an appeal proceeding were commenced, the applicant’s family would not be identified in connection with the proceeding by reference to the applicant’s unusual name. His Honour made the order after considering the summary of the principles of J Forrest J in ABC v D1; Ex parte The Herald and Weekly Times Limited.[2]
[2][2007] VSC 480 (30 November 2007) [65]–[71] (‘ABC’), approved in Secretary, Department of Justice and Regulation v Zhong(No 2) [2017] VSCA 19 (17 February 2017) [4] (Santamaria, Ferguson and McLeish JJA) (‘Zhong (No 2)’).
After the appeal proceeding was commenced, Ginnane J made orders (on 28 September 2016) to the effect (among other things) that the application of the applicant for an extension of time, his application for leave to appeal and, if leave were granted, the appeal would be heard together. The proceeding so consolidated progressed towards final hearing upon the basis that the applicant would be identified only by reference to the pseudonym ‘PQR’. The court documents and hearing notices reflected this. It was not possible to identify the applicant from those documents alone. When the proceeding came on for hearing before me on 22 February 2017, the parties agreed at the outset that the applicant would be referred to in court as ‘the applicant’ and not by reference to his real name. I adopted this course because it kept the hearing in the court otherwise completely open, did not restrict publication of the proceeding and represented the least interference with the ordinary open conduct of the proceeding.
It was then brought to my attention by senior counsel for the applicant that a journalist was present in court. He was later identified as a journalist for Herald and Weekly Times. I wanted to be sure that the purpose of the pseudonym order would not be frustrated by publication of the real name of the applicant in relation to the proceeding. Out of an abundance of caution, I therefore said to the journalist:
Well if I can address myself to you; I don’t want to close this proceeding up, but in order that the order made by the judge earlier, which is to protect the identity of the applicant by referring to him as PQR, we’re going to refer to him in this case as the applicant, and the effect of the order made by the judge previously is that he can’t be identified in essence. But you can stay and report the case subject to those limitations. Thank you.
I believe this made clear to the journalist that the pseudonym order prevented publication of the real name of the applicant in relation to the proceeding. The journalist acknowledged my remarks by nodding his head. The hearing was conducted upon this basis and I reserved judgment in the appeal late in the afternoon of that day.
Following contact made by solicitors for Herald and Weekly Times with my associate, I listed the matter for mention on 24 February 2017. At that mention hearing, Ms McGeoch, on behalf of Herald and Weekly Times, sought clarification of the effect of the pseudonym order made by Ginnane J. As already discussed, Herald and Weekly Times was not aware of the pre-commencement hearing. Therefore it did not have access to the relevant papers, which were marked confidential (see above).
In response to Ms McGeoch’s request, I explained the pseudonym order made by Ginnane J.[3] Ms McGeoch quite properly informed the court that Herald and Weekly Times believed that the order did not prevent it from publishing the applicant’s name if it was discovered independently. Certain facts discussed in court at the hearing on 22 February 2017 and heard by the journalist, in combination with information that was already publicly available, had apparently enabled Herald and Weekly Times to identify the applicant.
[3]I also gave the lawyers for Herald and Weekly Times access to the confidential ruling of Ginnane J, subject to a non-disclosure undertaking.
The applicant then announced his intention to make an application for a suppression order under s 17 of the Open Courts Act. I made an interim suppression order under s 20(1) of that Act, and issued certain directions for the determination of the application. As required by those directions, the applicant made an application for a suppression order on 27 February 2017 in the following terms:
1.Pursuant to section 17 of the Open Courts Act 2013 (Vic), the publication of a report of this proceeding, to the extent that it would disclose the name or address of the applicant or a family member of the applicant, including the applicant’s former wife, current partner, and their respective children, or the publication of any information derived from this proceeding which could reasonably be expected to enable such identification, is prohibited.
2.These orders apply throughout Australia, and operate until the death of the applicant.
As can be seen, this suppression order, if made, would not disturb, and would be designed to ensure the purpose of, the existing pseudonym order. The court gave news media organisations notice of this application pursuant to s 11(1) of the Open Courts Act. Herald and Weekly Times was the only organisation to appear and make submissions at the hearing of the application.
Also on 27 February 2017, Herald and Weekly Times published in the Herald Sun newspaper (and online) a news article and editorial opinion about aspects of the proceeding, without identifying the applicant. It has further articles and editorial opinions in contemplation. It opposes the making of any suppression order that would prevent identification of the applicant in relation to the proceeding and contends that the pseudonym order does not have that effect.
The court must now determine whether or not to make the proceeding suppression order sought by the applicant. In relation to that issue, I would summarise the submissions of the parties as follows:
·the applicant submits that the pseudonym order in combination with the law of contempt provides him with significant but not sufficient protection of his identity in relation to the proceeding and a suppression order under the Open Courts Act could and should be made
·the Secretary submits that the pseudonym order in combination with the law of contempt provides the applicant with strong protection of his identity in relation to the proceeding and there are serious questions whether a suppression order under the Open Courts Act could or should be made
·Herald and Weekly Times submits that the pseudonym order in combination with the law of contempt does not prevent publication identifying the applicant’s name in relation to the proceeding if it is discovered independently of the proceeding and a suppression order under the Open Courts Act either could not or should not be made
I will address these and other submissions in the course of the following examination of the Open Courts Act, the principles governing the making of pseudonym orders and the enforceability of such orders under the law of contempt.
Outline of Open Courts Act 2013 (Vic)
The provisions of a great many Victorian statutes prohibit or restrict, or authorise a court or tribunal to prohibit or restrict, the publication or other disclosure of information in relation to a legal proceeding or require or authorise proceedings to be closed to the public. These provisions give privacy protection to certain categories of persons who may be parties, witnesses or otherwise involved in legal proceedings, including (for example) parties to adoption proceedings,[4] children in proceedings in the Children’s Court,[5] persons found not guilty of crimes by reason of mental impairment,[6] persons involved in family violence proceedings,[7] parties to guardianship proceedings,[8] the identity and deliberations of jurors,[9] sexual offence complainants,[10] and also to certain kinds of proceedings, including (again for example) applications for surveillance warrants[11] and applications in respect of criminal intelligence.[12] By s 8(1), the Open Courts Act does not limit or otherwise affect the operation of such provisions and the particular Acts continue to apply.
[4]Adoption Act 1984 (Vic) s 121(2).
[5]Children, Youth and Families Act 2005 (Vic) s 534.
[6]Crimes (Mental Impairment and Unfitness to be Tried) Act1997 (Vic) s 75.
[7]Family Violence Protection Act 2008 (Vic) s 166(2); see AA v BB (2013) 296 ALR 353, 383 [155] (Bell J) (‘AA’).
[8]Victorian Civil and Administrative Tribunal Act 1998 (Vic) sch 1, cl 37(1).
[9]Juries Act 2000 (Vic) ss 77(1), 78.
[10]Judicial Proceedings Reports Act 1958 (Vic) s 4(1A).
[11]Surveillance Devices Act 1999 (Vic) s 15(7).
[12]Criminal Intelligence Control Act 2012 (Vic) pt 4.
Section 54 of the Open Courts Act repealed the provisions of ss 18 and 19 of the Supreme Court Act 1986 (Vic), which conferred power on this court to close proceedings to the public and make non-publication orders on certain specified grounds, including that this was necessary to avoid ‘prejudice to the administration of justice’ (s 19(b)).[13] But, consistently with constitutional principles requiring the Supreme Courts of the States to possess certain indispensable defining characteristics,[14] s 5(1) of the Open Courts Act expressly preserves the inherent jurisdiction of the court. This jurisdiction includes power to make pseudonym orders and suppression orders (see below).
[13]Section 37 of the Open Courts Act made consequential amendments to s 24(2) of the Charter by substituting the note at the foot of that sub-section with a reference to pt 5 of the Open Courts Act.
[14]See Wainohu v New South Wales (2011) 243 CLR 181, 208–9 [44] (French CJ and Kiefel J) (‘Wainohu’); Hogan v Hinch (2011) 243 CLR 506, 530 [20] (French CJ) (‘Hogan’); Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38, 71 [67] (French CJ) (‘Condon’); Forge v Australian Securities and Investments Commission (2006) 228 CLR 45, 76 [64], 80–1 [78] (Gummow, Hayne and Crennan JJ) (‘Forge’).
There is a general definition of ‘suppression order’ in s 3 as follows:
suppression order means—
(a) a proceeding suppression order;
…
(d)an order made by the Supreme Court in the exercise of its inherent jurisdiction that prohibits or restricts the publication or other disclosure of information in connection with any proceeding, whether or not the information was derived from the proceeding.
As can be seen, para (d) of the definition of ‘suppression order’ is general in terms and apt to include a suppression order of the kind therein specified made in the inherent jurisdiction of this court. Therefore, the making of a suppression order of that kind by this court in that jurisdiction is governed by the provisions of the Act relating to suppression orders, including the presumption in s 4 and the general provisions in pt 2 (see below).
A pre-commencement pseudonym order is usually expressed in terms that permit a proposed plaintiff or applicant to commence proceedings and be referred to in the proceeding by a pseudonym, as was the order made by Ginnane J in relation to PQR in this case. In ABC-1 and ABC-2 v Ring and Ring, I held that the making of a pre-commencement pseudonym order in such terms is not governed by the provisions of the Open Courts Act:
An order permitting a proposed civil proceeding to be issued in the name of plaintiffs identified by pseudonyms and requiring them to be identified in court documents only by those pseudonyms is not a ‘suppression order’ as defined in s 3. It does not come within any of the components of that definition. Such an order does not prohibit or restrict the publication or other disclosure of information in connection with a proceeding. It is a pre-commencement order that parties are to be named by way of pseudonym in court documents yet to be produced and filed. As a pseudonym order is not a suppression order under the Open Courts Act, it is not necessary for an applicant for such an order to comply with the notice provisions of that Act.[15]
[15][2014] VSC 5 (24 January 2014) [15] (‘ABC-1 and ABC-2’).
Dixon J reached the same conclusion in RN v Commonwealth[16] and subsequently, in Hunter v Australia Football League,[17] his Honour accepted my reasoning in ABC-1 and ABC-2. In Hunter, his Honour also referred to s 7(d) of the Open Courts Act,[18] which provides that that Act does not limit or otherwise affect the making of an order by a court or tribunal that:
[16](2014) 41 VR 699, 702 [13] (‘RN’).
[17][2015] VSC 112 (25 March 2015) [3] (‘Hunter’).
[18]Ibid [4].
(i)conceals the identity of a person by restricting the way the person is referred to in open court;
(ii) restricts the way an event or thing may be referred to in open court;
(iii) prohibits or restricts access to a court or tribunal file.
The decisions in ABC-1 and ABC-2 and RN were approved by Santamaria, Ferguson and McLeish JJA in Secretary, Department of Justice and Regulation v Zhong (No 2)[19] where the applicant for leave to appeal sought (and failed to obtain) a pseudonym order. After referring to the decisions, their Honours held:[20]
A pseudonym order de-identifies a party or witness but does not ‘prohibit or restrict the publication or other disclosure of information in connection with the proceeding.’[21] The Open Courts Act is not concerned with orders concealing identity, nor with orders prohibiting or restricting access to court files.[22] Consequently, that Act does not govern whether the orders sought by the respondent should be made in the present case. Rather, the Court must consider whether it should make the orders in the exercise of its inherent jurisdiction.
That is why the Open Courts Act did not govern the pseudonym order made by Ginnane J.
[19][2017] VSCA 19 (17 February 2017).
[20]Ibid [3].
[21]Open Courts Act ss 3 (definition of ‘suppression order’), 17.
[22]Ibid s 7.
As we have seen, para (a) of the definition of ‘suppression order’ in s 3 includes a ‘proceeding suppression order’. The making of a proceeding suppression order by this court comes under the general provisions of the Act relating to suppression orders, including the presumption in s 4 and the procedural and like provisions in pt 2 (see below), as well as the substantive provisions of pt 3 relating to proceeding suppression orders. A ‘proceeding suppression order’ is defined in s 3 to mean ‘an order made under section 17’. Section 17 provides:
17 Court or tribunal may make proceeding suppression order
A court or tribunal on one or more of the grounds specified in section 18 may make a proceeding suppression order to prohibit or restrict the disclosure by publication or otherwise of—
(a) a report of the whole or any part of a proceeding;
(b) any information derived from a proceeding.
The application in the present case is for such an order.
Turning first to the provisions governing the making of suppression orders generally, s 4 of the Open Courts Act states a presumption in favour of disclosure of information in the following terms:
4 Presumption in favour of disclosure of information
To strengthen and promote the principles of open justice and free communication of information, there is a presumption in favour of disclosure of information to which a court or tribunal must have regard in determining whether to make a suppression order.
The presumption in favour of disclosure of information in s 4 was expressly enacted for the purpose of strengthening and promoting the principles of open justice and free communication of information. Parliament clearly considered it to be necessary to draw particular attention to the significance of these principles in relation to determining applications for suppression orders, as well as closed court orders (see s 28). The presumption also provides insight into the intended purposes and operation of the Open Courts Act generally, although the Act lacks a purposes provision to this effect and the formal and neutral terms of the present provision (s 1) are unhelpful in this connection. The principles of open justice and free communication of information stipulated in s 4 operate to protect fundamental rights and interests that are recognised not only under the Open Courts Act but also under the common law (see below) and ss 15(2) and 24(1) of the Charter.[23]
[23]See News Digital MediaPty Ltd v Mokbel (2010) 30 VR 248, 258–9 [38] (Warren CJ and Byrne AJA) (‘News Digital Media’); X v General Television Corporation Pty Ltd (2008) 187 A Crim R 533, 538-9 [33]-[37] (Vickery J) (‘X’).
Part 2 of the Open Courts Act makes provision for the procedures to be followed when making suppression orders (ss 10–11), and their duration (s 12), scope (s 13), evidentiary foundation (s 14) and review (s 15). The provisions relating to the scope and evidentiary foundation of such orders, in particular, give legislative force to important existing principles of the common law. The provisions relating to the procedures to be followed when making proceeding suppression orders, and particularly the requirement for notice to be given to the other parties of the proceeding and also relevant news media organisations, go further than what is required under existing principles of the common law.
The purpose of these legislative procedures is to ensure that, in most cases, suppression orders are only made after interested parties, including news media organisations, have been given due notice and, where they have appeared, have been heard. The clear intention of the legislature is to enhance the capacity of courts and tribunals, through the adversarial process and as appropriate in the individual case, to give proper attention to the relevant considerations, including the interests of open justice and free communication of information for which news media organisations may contend.
The provisions of the Open Courts Act govern the two usual kinds of suppression orders. Reflecting the distinction made in the analysis in News Digital Media Pty Ltd v Mokbel,[24] pt 3 of the Open Courts Act covers the making of ‘proceeding suppression orders’ and pt 4 covers the making of ‘broad suppression orders’. Section 17 (see also the definition in s 3) defines a ‘proceeding suppression order’, as we have seen. Such an order can only be made by reason of necessity on the grounds specified in s 18, which reflects the position at common law (see below).
[24](2010) 30 VR 248, 258–9 [33]–[36] (Warren CJ and Byrne AJA).
Broad suppression orders are designed to ensure that the fair trial of a person charged with a criminal offence is not prejudiced by any publication at all. Unlike material that might permissibly be covered by a proceeding suppression order, a broad suppression order may cover material that does not arise out of legal proceedings. To ensure that a broad suppression order is not made where the material does so arise, s 24 confines such a case to the proceeding suppression order regime. Part 4 does not interfere with the inherent jurisdiction of this court to make a broad suppression order and extends it to the County Court (s 25(1)). The Magistrates’ Court is expressly given like powers (s 26(1)).
Part 5 of the Open Courts Act regulates the making of closed court orders, defined in s 28 (see also the definition is s 3). These raise similar issues to, but are different in operation to, suppression orders. The remarks made above in relation to the significance of the presumption about the free disclosure of information, to which Parliament has drawn particular attention, apply equally to the presumption in favour of open court.
Without affecting any existing power to regulate their proceedings (s 29(1)), s 30(1)(a) and (b) empowers a court or tribunal to order that the whole or any part of a proceeding be heard in closed session or that only particular persons or classes of persons may be present. In making such orders, the court[25] or tribunal must determine whether it is necessary to make an order having regard to the matters specified in s 30(2), which correlate with the matters specified in s 18(1) in relation to proceeding suppression orders. When an order is made, a copy must be posted on the door of the court or other conspicuous place.
[25]The Coroners Court is required by s 30(3) to have regard to the necessity to make an order having regard to matters that are specific to its jurisdiction.
Such is the general outline of the Open Courts Act. Before going to the specific elements of the Act that apply in the present case, it is necessary to say something about the fundamental importance of open justice and free communication of information.
Fundamental importance of open justice and free communication of information
As applicable to this court, the principles of open justice and free communication of information are of fundamental importance under the Australian Constitution, the common law and the Charter.
In relation to the Constitution, an indispensable defining characteristic of the Supreme Courts of the States is adherence by those courts to those principles as a general rule.[26] The reality and appearance of independence and impartiality of those courts come into the same category.[27] The operation of these principles serves to maintain this standard.[28]
[26]Wainohu (2011) 243 CLR 181, 208–9 [44] (French CJ and Kiefel J); Hogan (2011) 243 CLR 506, 530 [20] (French CJ); Condon (2013) 252 CLR 38, 71 [67] (French CJ).
[27]Forge (2006) 228 CLR 45, 76 [64], 80–1 [78] (Gummow, Hayne and Crennan JJ).
[28]Hogan (2011) 243 CLR 506, 530 [20] (French CJ).
In relation to the common law, a fundamental feature of the rule of law is that legal proceedings in courts are presumptively heard and determined in public.[29] Three different elements of this principle have been described by Jason Bosland and Ashleigh Bagnall as follows:[30]
This longstanding common law principle manifests itself in three substantive ways:[31] first, proceedings are conducted in ‘open court’;[32] second, information and evidence presented in court is communicated publicly to those present in court;[33] and, third, nothing is to be done to discourage the making of fair and accurate reports of judicial proceedings in open court, including by the media.[34] This includes reporting the names of the parties as well as the evidence given during the course of proceedings.
[29]Scott v Scott [1913] AC 417, 437–8 (Viscount Haldane LC), 440–1 (Earl of Halsbury), 447 (Earl Loreburn) (‘Scott’); Russell v Russell (1976) 134 CLR 495, 520 (Gibbs J) (‘Russell’).
[30]Jason Bosland and Ashleigh Bagnall, ‘An Empirical Analysis of Suppression Orders in the Victorian Courts: 2008–12’ (2013) 35 Sydney Law Review 671, 674.
[31]See generally Des Butler and Sharon Rodrick, Australian Media Law (Thomson Reuters, 4th ed, 2011) 212–14.
[32]Scott [1913] AC 417, 429; Dickason v Dickason (1913) 17 CLR 50, 51 (Barton ACJ for the Court).
[33]Attorney-General v Leveller Magazine Ltd [1979] AC 440, 450 (Lord Diplock) (‘Leveller Magazine’).
[34]Ibid; Hogan (2011) 243 CLR 506, 532 [22] (French CJ); Rogers v Nationwide News Pty Limited (2003) 216 CLR 327, 335 [15] (Gleeson CJ and Gummow J).
In relation to the Charter, s 15(2) stipulates the right to freedom of expression. The several elements of this right include not only ‘freedom of expression’ but also the rights to ‘seek, receive and impart information and ideas of all kinds’ (emphasis added),[35] which includes information relating to or arising out of legal proceedings.[36] It is qualified internally (s 15(3)) and under s 7(2).[37] Section 24(1) of the Charter stipulates the right to a fair hearing. It can be seen that the right is to decision by a ‘competent, independent and impartial court or tribunal after a fair and public hearing’ (emphasis added). There is interplay between the different elements of this right: the requirement for a fair and public hearing reinforces the requirement for a decision by a competent, independent and impartial court or tribunal. It too is qualified internally (s 24(2)) and under s 7(2).[38] Making pseudonym and suppression orders engages these rights. In relation to s 15(2), such orders operate, to a greater of lesser extent, to limit a person’s capacity to report facts and express views, and to obtain and impart information, about a legal proceeding. In relation to s 24(1), such orders operate, to a greater or lesser extent, to reduce the public nature of hearings and, therefore, a person’s capacity to report facts and express opinions, about the proceeding.
[35]On the scope of the right in s 15(2) of the Charter, see generally Re XYZ and Victoria Police (2010) 33 VAR 1, 66-95 [409]–[559] (Bell J); on the scope of the correlative right in art 19 of the International Covenant on Civil and Political Rights (opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)), see Human Rights Committee, General Comment No 34: Article 19 (Freedoms of opinion and expression), 102nd sess, UN Doc CCPR/C/GC/34 (12 September 2011); on the several nature of the different elements of this right, see The Sunday Times v The United Kingdom (1979–80) 2 EHRR 245, 280-1 [65]-[66] (European Court of Human Rights) (‘Sunday Times’).
[36]See, eg, News Digital Media (2010) 30 VR 248, 259 [38] (Warren CJ and Byrne AJA); X (2008) 187 A Crim R 533, 538-9 [34]-[40] (Vickery J).
[37]The nature of the interaction (if any) between these provisions does not arise for consideration in this case.
[38]Again, the nature of the interaction (if any) between these provisions does not arise for consideration in this case.
Extensive judicial discussion of the purposes of open justice and free communication of information is to be found in the constitutional,[39] common law[40] and human rights[41] jurisprudence, a recurring theme being that these are indispensible elements of the operation of the rule of law in democratic society.[42] In summary, the essential purposes of the principles of open justice and free communication of information are: to protect citizens from the exercise of arbitrary power; to ensure that judges hear and determine proceedings fairly, impartially and according to law; to maintain public confidence in the legal system and the rule of law by ensuring that justice is both done and seen to the done; to ensure that hearings and other legal proceedings are effective means of obtaining and testing evidence and establishing facts; and to enhance public knowledge of the law and the legal process. Of the many pertinent statements of principle made by Australian judges of high authority, the following by Gibbs J in Russell is especially salient:[43]
It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted ‘publicly and in open view’.[44] This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for ‘publicity is the authentic hall-mark of judicial as distinct from administrative procedure’.[45]
The Court of Appeal of this court has repeatedly emphasised that justice must be administered by the courts in public as a safeguard against the risk of them abusing their power or departing from strict standards of impartiality.[46]
[39]See, eg, Russell (1976) 134 CLR 495, 520 (Gibbs J).
[40]See, eg, R v Legal Aid Board; Ex parte Kain Todner [1999] QB 966, 977 (Lord Woolf MR), approved in In re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593, 607 (Lord Steyn, Lord Bingham, Lord Nicholls, Lord Hoffman and Lord Carswell agreeing) (‘S’).
[41]See, eg, Diennet v France (1995) 21 EHRR 554, 561 [33] (European Commission of Human Rights).
[42]See, eg, A v British Broadcasting Corporation (Secretary of State for the Home Department intervening) [2015] AC 588, 600 [23] (Lord Reed JSC, Baroness Hale DPSC, Lord Wilson, Lord Hughes and Lord Hodge JJSC agreeing) (‘A’).
[43](1976) 134 CLR 495, 520.
[44]Scott [1913] AC 417, 441 (Earl of Halsbury).
[45]McPherson v McPherson [1936] AC 177, 200 (Lord Blanesburgh for the Court).
[46]Re Applications by Chief Commissioner of Police (Vic)for Leave to Appeal (2004) 9 VR 275, 286 [25] (Winneke P, Ormiston and Vincent JJA); News Digital Media (2010) 30 VR 248, 258–9 [35] (Warren CJ and Byrne AJA).
An important corollary of the principles of open justice and free communication of information is that, absent any order by the court or legislative restrictions to the contrary, all interested persons including journalists have the right to attend and report upon the hearing and determination of legal proceedings.[47] News organisations function as the eyes and ears of the community in relation to the operation of the courts and the conduct of legal proceedings.[48] As McHugh JA stated in John Fairfax & Sons Ltd v Police Tribunal of New South Wales, the principle of open justice requires that the courts do ‘nothing … to discourage the making of fair and accurate reports of what occurs in the courtroom’.[49] In News Digital Media, Warren CJ and Byrne AJA recognised that this aspect of the open court principle is closely connected with the human right to freedom of expression and to seek, receive and impart information, which, in Victoria, is stipulated in s 15(2) of the Charter.[50] An influential[51] statement from that perspective of human rights was made by Cory J for the Supreme Court of Canada in Edmonton Journal v Alberta (Attorney-General):[52]
There is another aspect to freedom of expression which was recognized by this Court in Ford v Quebec (Attorney General).[53] There at p 767 it was observed that freedom of expression ‘protects listeners as well as speakers’. That is to say as listeners and readers, members of the public have a right to information pertaining to public institutions and particularly the courts. Here the press plays a fundamentally important role. It is exceedingly difficult for many, if not most, people to attend a court trial. Neither working couples nor mothers or fathers house-bound with young children, would find it possible to attend court. Those who cannot attend rely in large measure upon the press to inform them about court proceedings — the nature of the evidence that was called, the arguments presented, the comments made by the trial judge — in order to know not only what rights they may have, but how their problems might be dealt with in court. It is only through the press that most individuals can really learn of what is transpiring in the courts. They as ‘listeners’ or readers have a right to receive this information. Only then can they make an assessment of the institution. Discussion of court cases and constructive criticism of court proceedings is dependent upon the receipt by the public of information as to what transpired in court. Practically speaking, this information can only be obtained from the newspapers or other media.
[47]The authorities are collected by French CJ in Hogan (2011) 243 CLR 506, 532 [22] n 165.
[48]News Digital Media (2010) 30 VR 248, 258 [35] (Warren CJ and Byrne AJA).
[49](1986) 5 NSWLR 465, 476–7 (‘Police Tribunal of NSW’).
[50](2010) 30 VR 248, 259 [38].
[51]See, eg, Khuja v Times Newspapers Ltd [2017] 3 WLR 351, 362 [16] (‘Khuja’), where Lord Sumption JSC (Lord Neuberger PSC, Baroness Hale DPSC, Lord Clarke and Lord Reed JJSC agreeing) cited this statement with approval.
[52][1989] 2 SCR 1326, 1339–40 (‘Edmonton Journal’).
[53][1988] 2 SCR 712.
Therefore, in the present case, Herald and Weekly Times is entitled to rely upon the presumption in favour of disclosure of information, which is specified in s 4 of the Open Courts Act, to resist the applicant’s application for a suppression order. In doing so, it is not required to justify its interest in publishing material in relation to the subject matter of the proceeding before the court or the issues in question, although it has successfully shown that these are matters of legitimate concern to the community. The onus rests upon the applicant to demonstrate the necessity for making the order sought, for it would qualify the operation of the presumption by prohibiting publication of his name and address (and that of his family) in relation to the proceeding.
While the principles of open justice and free communication of information are fundamentally important, they are not absolute. Subject to certain safeguards, pseudonym orders and suppression orders may be made in circumstances of necessity where the grounds are established. This is so under the common law (as regards both kinds of orders), the Open Courts Act (as regards suppression orders) and human rights principles (as regards both), although not necessarily upon identical bases. Carefully identifying and properly balancing the competing rights and interests is required in all jurisdictions. But, under the Open Courts Act, a presumption in favour of disclosure of information applies (s 4), which is the situation under human rights in Canada.[54] Under human rights in Europe and the United Kingdom,[55] the competing rights and interests are balanced equally one against the other upon careful scrutiny of the facts and circumstances of the case. The position under ss 7(2), 15(3) and 24(2) of the Charter, and the interaction between the provisions of the Charter and the Working with Children Act, has not yet been examined.
[54]The Canadian Charter of Rights and Freedoms, at ss 2(b) and 11(d), specifies respectively the human rights of freedom of expression and the fair and public hearing of criminal charges. Those provisions give rise to an open court principle (see R v Mentuck [2001] 3 SCR 442, 457–66 [22]–[39] (Iacobucci J for the whole Supreme Court of Canada)). In reference to those rights, in AB v Bragg Communications Inc [2012] 2 SCR 567, 574 [11] (‘Bragg’), Abella J stated for whole Supreme Court of Canada: ‘The open court principle requires that court proceedings presumptively be open and accessible to the public and to the media’. Her Honour described the nature of the inquiry thus (ibid 574-5 [11] (footnotes omitted)):
The inquiry is into whether [the restriction] is necessary to protect an important legal interest and impairs free expression as little as possible. If alternative measures can just as effectively protect the interests engaged, the restriction is unjustified. If no such alternatives exist, the inquiry turns to whether the proper balance was struck between the open court principle and the privacy rights [engaged].
[55]Drawing upon the European jurisprudence, the applicable test was stated in S [2005] 1 AC 593, 603 [17] by Lord Steyn (Lord Bingham, Lord Nicholls, Lord Hoffman and Lord Carswell agreeing) as follows:
First, neither [right] has as such precedence over the other. Secondly, where the values under the two [rights] are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience, I will call this the ultimate balancing test. (Emphasis in original)
See also A [2015] AC 588, 605–9 [42]–[54] (Lord Reed JSC, Baroness Hale DPSC, Lord Wilson, Lord Hughes and Lord Hodge JJSC agreeing).
When determining whether to make a pseudonym order or suppression order limiting open justice or the free communication of information about legal proceedings, and the scope of any such order, this court too has emphasised the need carefully to identify and properly balance the competing rights and interests that are engaged and the values that they represent. For example, when discussing the principles governing the making of pseudonym orders in ABC, J Forrest J referred[56] with approval to decisions of the Federal Court of Australia which emphasised the need to balance the interests of open justice and preventing prejudice to the administration of justice.[57] Other decisions in this court have emphasised the central task of ‘balancing the various interests and values involved’[58]. For example, in Herald and Weekly Times Pty Ltd v A, Maxwell P and Nettle JA spoke (in reference to making a suppression order in a criminal case) of the need to balance ‘the interests of society in ensuring that the [applicant] receives a fair trial against the competing interests of society in the freedom of expression’.[59] In Nationwide New Pty Ltd v Farquharson, Nettle JA said, in a similar context, that whether to make an order depended upon a ‘fact/value assessment’.[60] I draw on this emphasis in this judgment.
[56][2007] VSC 480 (30 November 2007) [58]–[60].
[57]Australian Broadcasting Commission v Parish (1980) 29 ALR 228, 236 (Bowen CJ); Herald & Weekly Times Ltd v Williams (2003) 130 FCR 435, 444–5 (Merkel J, Finn and Stone JJ agreeing).
[58]BY v Australian Red Cross Society (Unreported, Supreme Court of Victoria, Vincent J, 31 October 1991) 4; approved in AX v Stern [2008] VSC 400 (30 September 2008) [5] (Warren CJ).
[59](2005) 160 A Crim R 299, 307 [34]; see further News Digital Media (2010) 30 VR 248, 358–9 [35] (Warren CJ and Byrne AJA).
[60](2010) 28 VR 473, 477 [19] (‘Farquharson’).
I will go first to the procedural and other safeguards in the Open Courts Act and then turn to the test of necessity and the grounds that apply in relation to applications for suppression orders.
Making suppression orders: procedural and other safeguards
The integrity of the fundamental principles of open justice and free communication of information, and fundamental civil liberties under the common law, are gradually eroded and weakened by making suppression orders that are not strictly necessary for ensuring the administration of justice. As explained in Scott by Lord Shaw, ‘[t]here is no greater danger of usurpation than that which proceeds little by little, under cover of rules of procedure, and at the instance of judges themselves.’[61] Constant judicial vigilance is called for, as the courts are the custodians of these fundamental principles, which were described by Lord Loreburn in the same case as the ‘almost priceless inheritance’[62] of the community. More recently, Lord Woolf felt it necessary to re-state in R v Legal Aid Board; Ex parte Kaim Todner:
The need to be vigilant arises from the natural tendency for the general principle to be eroded and for exceptions to grow by accretion as the exceptions are applied by analogy to existing cases.[63]
The provisions of the Open Courts Act may be understood as intending to enhance the capacity of the court to exercise that vigilance.
[61][1913] AC 417, 477–8.
[62]Ibid 447.
[63][1999] QB 966, 977, approved in S [2005] 1 AC 593, 607 [29](Lord Steyn, Lord Bingham, Lord Nicholls, Lord Hoffman and Lord Carswell agreeing).
Under the Open Courts Act, in most cases suppression orders may be made when the applicant establishes, after due notice has been given to the parties (by the applicant)[64] and news organisations (by the court),[65] that the limited grounds have been satisfied[66] by cogent evidence[67] and there are no other reasonably available means[68] to a clear and limited order[69] of maximum specified duration.[70] The general purpose of these requirements, most but not all of which apply under the common law, is to ensure that suppression orders are only made in exceptional circumstances and that the fundamental principles of open justice and free communication of information are maximally protected and not gradually eroded. In human rights terms, the safeguards operate to ensure that any limitation on freedom of expression and fair public hearings by a suppression order is proportionate and demonstrably justified by reference to, and limited to addressing, pressing legitimate purposes and goes no further than the principle of least restriction requires.[71]
[64]Section 10(1).
[65]Section 11(1).
[66]Section 18(1).
[67]Section 14(1).
[68]Section 18(1).
[69]Section 13(1).
[70]Section 12(1).
[71]See ss 7(2), 15(3), 24(2) of the Charter.
Whether one approaches the matter from the point of view of the Open Courts Act or the inherent jurisdiction of the court under the common law (or indeed the human rights specified in the Charter), the onus is upon the applicant convincingly to establish that the presumption of open justice and free communication of information should be qualified and a suppression order made. Thus, in Hogan,[72] the High Court approved this general statement of the common law position by Viscount Haldane LC in Scott:
There it may well be that justice could not be done at all if it had to be done in public. As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. The question is by no means one which, consistently with the spirit of our jurisprudence, can be dealt with by the judge as resting in his mere discretion as to what is expedient. The latter must treat it as one of principle, and as turning, not on convenience, but on necessity.[73]
[72]Hogan (2011) 243 CLR 506, 552 [87[ (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ), citing R v Macfarlane; Ex parte O’Flanagan and O’Kelly (1923) 32 CLR 518, 549 (Isaacs J) where the statement of Viscount Haldane LC was cited with approval.
[73][1913] AC 417, 437–8 (emphasis added).
Most suppression orders and pseudonym orders are general in nature and, in operation, affect news media organisations indirectly and not as parties to the proceeding or named subjects of the order. Therefore, at common law, there is no requirement to notify news media organisations (that are not parties or subjects) about applications for such orders.[74] Further, news media organisations do not, under the common law, have an absolute right to be heard when an application for such an order is made.[75] The court does have discretion to allow an organisation to be heard and may grant it intervener status in the hearing of applications.[76]
[74]John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1991) 26 NSWLR 131, 167–8 (Mahoney JA, Hope AJA agreeing) (‘Local Court of NSW’).
[75]Ibid; The Herald and Weekly Times Ltd v Medical Practitioners Board of Victoria [1991] 1 VR 267, 297 [103] (Hedigan J) (‘Medical Practitioners Board’).
[76]Local Court of NSW (1991) 26 NSWLR 131, 167–8 (Mahoney JA, Hope AJA agreeing); Medical Practitioners Board [1991] 1 VR 267, 297 [103] (Hedigan J).
News media organisations may be liable in contempt for knowingly publishing in relation to the proceeding in a manner that frustrates its purpose.[77] Therefore, as persons affected by such an order, news media organisations have the right to apply for it to be varied or revoked.[78] But this means the court will usually hear from the organisation for the first time after determining whether or not the order should be made and, where the court has determined to do so, the beneficiary of the order may have altered his or her position in reliance upon it, as in the present case.
[77]Police Tribunal of NSW (1986) 5 NSWLR 465, 477(McHugh JA); see also Attorney-General for New South Wales v Mayas Pty Ltd (1988) 14 NSWLR 342, 355 (McHugh JA, Hope JA agreeing) and the analysis below.
[78]Local Court of NSW (1991) 26 NSWLR 131, 167–8 (Mahoney JA, Hope AJA agreeing); The Herald and Weekly Times Ltd v Braun [1994] 1 VR 705, 711 (Beach J).
In consequence, at common law, suppression and pseudonym orders may be made, often by consent, without receiving submissions from news media organisations from the point of view of guarding open justice and the free communication of information. While, of course, orders should not be made, even if not opposed or by consent, without careful scrutiny of the factual foundation and grounds of the application, it is often not easy to do so in the absence of an effective contradictor. Indeed, the pseudonym order in the present case was made in such circumstances, which has given rise to difficulties. On the one side, at the start of the hearing in this court, Herald and Weekly Times was met with the fact of the order, and my explanation of its purpose, without previously having the opportunity to be heard.[79] On the other side, the applicant has commenced and participated in the appellate process in reliance upon the order only to find at the final hearing that Herald and Weekly Times asserts a freedom to identify him in relation to the proceeding.
[79]As discussed below, there is presently no requirement under the Open Courts Act for notice of the application for the pseudonym order to be given to news media organisations.
The notice requirements in pt 2 of the Open Courts Act are important reforms that have been designed to address these difficulties and enhance the capacity of the court to hear and determine applications for suppression orders after receiving all relevant information and submissions. As Jason Bosland has written:
The primary purpose of the notice regime is to ensure that the media, as the traditional guardians of open justice, have adequate opportunity to exercise their right to be heard and oppose the making of suppression orders at the time when their substantive merits are being considered by the courts. The expectation is that media challenges to suppression orders will not only reduce the making of unjustified orders, but will also improve the quality of the orders that are ultimately made.[80]
[80]Jason Bosland, ‘Two years of Suppression under the Open Courts Act 2013 (Vic)’ (2017) 39 Sydney Law Review 25, 35.
In the usual case, applications for a suppression order must be made on three business days’ notice to the court or tribunal and the parties (s 10(1)(a) and (b)).[81] On receiving such notice, the court or tribunal must take reasonable steps to ensure that any relevant news media organisation is notified (s 11(1)). Along with the applicant for the order and the parties (among others), such organisations have statutory standing to appear at the hearing and determination of the application (s 19(2)(e)). This court has a media officer and protocols for ensuring that these requirements are complied with, as occurred in the present case.
[81]The application may be determined without such notice being given if the court or tribunal is satisfied that there was a good reason for notice not being given or it is in the interests of justice to do so (s 10(3)(a) and (b)). The notice provisions do not apply to the making of a suppression order on the own motion of the court or tribunal (s 10(4)).
These notice provisions implicitly recognise that applications for suppression orders do not just concern the private interests of the parties but may frequently engage important public interests about the operation of the legal system and the matters in issue in the proceeding. Therefore, in many cases, it is not only the applicant and the parties to the proceeding who will have an interest in whether a suppression order should be made. Other persons, particularly news media organisations, may have a stake in ensuring that, in the proceeding, the presumption of free disclosure of information is maintained and, therefore, that justice is kept fully open and information can be communicated with the freedom expected in democratic society.
An application for a suppression order must be supported by evidence or other credible information demonstrating the necessity for making the order. As Viscount Haldane LC said in Scott, the applicant ‘must make out his case strictly, and bring it up to the standard which the underlying principle requires’.[82] This point was emphasised by McHugh JA in Police Tribunal of NSW when his Honour said ‘there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication’.[83] In this court there have been many statements on this point, including that of Davies J in Lew v Priester (No 2):[84]
A real risk of serious interference with the administration of justice must be demonstrated[85] and an application for a non-publication order requires some cogent evidence to support the basis on which the application is made. A belief that the order is necessary is insufficient.[86]
This requirement for cogent evidence or credible information has now been given legislative force in s 14(1) of the Open Courts Act, which permits the court to make a suppression order only when it is ‘satisfied on the basis of evidence, or sufficient credible information that is satisfactory … that the grounds for making the order are established’. As under the common law, this requirement may be satisfied in certain cases by the court acting on its own experience and drawing inferences when this is justified.[87]
[82][1913] AC 417, 438.
[83](1986) 5 NSWLR 465, 477.
[84](2012) 35 VR 216, 221 [14].
[85]Hogan v Australian Crime Commission(2010) 240 CLR 651, 664 [30]–[31] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ); Rinehart v Welker(2011) 93 NSWLR 311, 320–1 [27]–[31] (Bathurst CJ and McColl JA), 332–3 [102]–[107] (Young JA).
[86]Police Tribunal of NSW (1986) 5 NSWLR 465, 476–7 (McHugh JA); see also Hogan (2011) 243 CLR 506, 534 [26] (French CJ); Ex parte the Queensland Law Society Inc[1984] 1 Qd R 166.
[87]ABC [2007] VSC 480 (30 November 2007 [71] (J Forrest J).
Requiring production of cogent evidence or credible information in support of an application for a suppression order is not matter of mere form. The purpose of this requirement is to assist in ensuring that suppression orders are kept for exceptional cases. It is therefore necessary for the court carefully to scrutinise the justification for, and the nature and scope of, the proposed order against the applicable grounds, and by reference to the evidence and information that is presented, having regard to the rights and interests that are at stake and the values that they represent, even when the application is not opposed or by consent. The question is whether the presumption in favour of disclosure of information, which reflects the fundamental principles of open justice and free communication of information, should be qualified by the necessity to make the order upon the grounds relied upon.
Under the common law, both freedom of expression and access to a fair and public hearing are inherently important in themselves and instrumentally important as a means of protecting other important civil rights and liberties. But they are not absolute and are subject to regulation and limitation under law, including by suppression and like orders made in the inherent jurisdiction of the court. To protect the operation of freedom of expression and access to a fair and public hearing and other important rights and liberties so far as possible, such an order must be really necessary and go no further than the purpose of the order requires. As was explained by McHugh JA in Police Tribunal of NSW:
an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice.[88]
[88](1986) 5 NSWLR 465, 477.
Likewise, freedom of expression and access to a fair and public hearing are recognised as human rights in ss 15(2) and 24(1) of the Charter, but neither are absolute under ss 7(2), 15(3) and 24(2).[89] Speaking generally, limitations, when under law (such as by suppression or like orders), may be compatible with human rights where justification is found to be demonstrably necessary after the various rights and interests have been carefully identified and properly balanced (see above). Even when so justified, the interference must be proportionate having regard to the legitimate purpose identified, represent the least restrictive means of achieving that purpose and expressed clearly and accessibly.[90]
[89]In relation to limitation by suppression or like order, see, eg, X (2008) 187 A Crim R 533, 538-9 [34]-[40] (Vickery J); see also Magee v Delaney (2012) 39 VR 50, 71 [103] (Kyrou J).
[90]In relation to the requirement for textual clarity and accessibility (which part of the legality component of the principle of justification), to be compatible with human rights, a limitation must be ‘under law’, ‘lawful’ or prescribed by a ‘law’ (ss 7(2), 15(3) and 24(2) respectively of the Charter), which means (among other things) that it must be sufficiently clear and accessible to enable persons affected foreseeably to regulate their conduct and seek advice: see generally Re Kracke and Mental Health Review Board (2010) 29 VAR 1, 46 [174] (Bell J), citing Sunday Times (1979) 2 EHRR 245, 271 [49] (European Court of Human Rights); see further on art 19(3) of the ICCPR (opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)): Human Rights Committee, General Comment No 34: Article 19 (Freedoms of opinion and expression), 102nd sess, UN Doc CCPR/C/GC/34 (12 September 2011) [25].
The design of the Open Courts Act has employed these principles in mutually reinforcing ways in ss 13 and 18 to help ensure that suppression orders are only made when strictly necessary and then in appropriately limited terms. Looking at s 18 first, it applies in relation to whether an order should be made. The grounds in paras (a)–(f) of s 18(1) incorporate a test of necessity and the ground in para (a) incorporates a test of whether other means are reasonably available (see below). Section 13 applies in relation to the scope and purpose of an order when made. Sub-section (1) provides:
13Scope of information covered by order and purpose of suppression order
(1)A suppression order must specify the information to which the order applies with sufficient particularity to ensure that—
(a)the order is limited to achieving the purpose for which the order is made; and
(b)the order does not apply to any more information than is necessary to achieve the purpose for which the order is made; and
(c)it is readily apparent from the terms of the order what information is subject to the order.
This provision, which is mandatory in operation, directly imposes an obligation upon the court when making a suppression order as to the formulation of its terms. To reinforce the presumption in favour of free disclosure of information in s 4, the obligation goes beyond matters of manner and form to require the court to limit and specify the scope of the order. In so requiring, para (a) gives effect to the centrepiece of the principle of proportionality, para (b) gives effect to a principle of least interference, which is also part of that principle, and para (c) gives effect to a principle of clarity and accessibility (which forms part of the principle of justification).[91] Further, s 13(2)(a) and (b) requires the court in all cases to specify the purpose of the order and, in cases that include making a proceeding suppression order, the grounds, which is intended to focus the attention of the court or tribunal upon these matters when determining whether to make an order, and its scope, and also to assist persons affected by the order to understand their obligations.[92] Sections 13 and 18 are mutually reinforcing because limiting the scope and purpose and enhancing the clarity of orders under s 13(1) and (2) can feed back into determining the substantive questions in s 18(1) whether the grounds of necessity are established and other means are not reasonably available. The intention of the legislature could hardly be clearer.
[91]Ibid.
[92]See also the provisions in relation to setting a definite duration for (s 12,) and permitting review of (s 15), suppression orders.
I turn now to the grounds upon which a suppression order may be made, upon which the application in the present case turns.
Making suppression orders: grounds
The general rule that courts must hear and determine legal proceedings in public is subject to the necessity to do otherwise, including by making pseudonym and suppression orders, in exceptional cases. Just as the open court principle inheres in courts as an indispensable feature of their judicial function, so (quite apart from statutory powers) ‘there is inherent power to impinge by order in a given case upon the general principle that the courts shall conduct their proceedings in public’.[93] This jurisdiction is founded upon the same purpose as the general rule, being preservation of the interests of justice, of which there is extensive discussion in the jurisprudence. The leading British case is Scott.[94] As we have seen, the High Court[95] has cited with approval the general statement made in the judgment of Viscount Haldane LC in Scott (see above).[96] Both the general rule and the inherent jurisdiction to make a suppression order in exceptional cases were explained by McHugh JA in the leading Australian case of Police Tribunal of NSW, as follows:
The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient. When the court is an inferior court, the order must do no more than is ‘necessary to enable it to act effectively within’ its jurisdiction.[97]
The leading case in the Court of Appeal of this court is News Digital Media, where Warren CJ and Byrne AJA said:
the making of an order restraining, restricting, or postponing the reporting of a court proceeding or any part of a court proceeding is exceptional and, in general, will be made only where it is necessary to preserve the integrity of the court process, to ensure that the process can function properly, or to protect privacy or confidentiality of very limited kinds.[98]
[93]Re a Former Officer of the Australian Security Intelligence Organisation [1987] VR 875, 876 (Brooking J) (‘Re a Former Officer of ASIO’).
[94][1913] AC 417.
[95]Hogan (2011) 243 CLR 506, 552 [87] (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ), approving the judgment of Isaacs J in R v Macfarlane; Ex parte O’Flanagan and O’Kelly (1923) 32 CLR 518, 549 where the judgment of Viscount Haldane LC in Scott was cited with approval.
[96][1913] AC 417, 437–8.
[97](1986) 5 NSWLR 465, 476–7.
[98](2010) 30 VR 248, 259 [35].
When speaking of the inherent jurisdiction of courts to make suppression and like orders in both civil and criminal cases, judges emphasise the significance of the necessity standard, which is applied to preserve the integrity of the presumption of open justice and free communication of information. By reference to leading authorities, I discussed this standard in AA v BB:[99]
‘Necessary’ is a ‘strong’[100] word, … An order is not ‘necessary’ simply because a party wishes to avoid publicity or media scrutiny or to keep matters private and confidential.[101] The making of an order is not justified simply because it is convenient, reasonable or sensible, or serves some generalised notion of the public interest.[102] The making of an order is not justified simply to save a party or a witness from public embarrassment.[103] The requirement is that the order must be ‘necessary in order to serve the ends of justice’,[104] ‘necessary to secure the proper administration of justice in proceedings’[105] or necessary to avoid a course which would ‘destroy the attainment of justice in the particular case’.[106] As McHugh JA explained in [Police Tribunal of NSW]:[107]
… Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it.[108]
[99](2013) 296 ALR 353, 388 [181] (‘AA’).
[100]Hogan v Australian Crime Commission (2010) 240 CLR 651, 664 [30] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ).
[101]Ibid 667 [43].
[102]Ibid 664 [31].
[103]R v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [1984] QB 227, 235 (Sir John Donaldson MR); Local Court of NSW (1991) 26 NSWLR 131, 142–3 (Kirby P).
[104]Leveller Magazine [1979] AC 440, 450 (Lord Diplock).
[105]Police Tribunal of NSW(1986) 5 NSWLR 465, 477 (McHugh JA).
[106]Local Court of NSW (1991) 26 NSWLR 131, 141 (Kirby P).
[107](1986) 5 NSWLR 465.
[108]Ibid 476–7.
The object of the necessity standard has been expressed in different ways. In Scott, Viscount Haldane LC stated the order had to be necessary to ‘do justice’.[109] In Police Tribunal of NSW, McHugh JA said it had to be ‘really necessary to secure the proper administration of justice’.[110] In News Digital Media, Warren CJ and Byrne AJA said the order had to be ‘necessary to preserve the integrity of the court process’.[111] In Canada, where the test must conform to constitutional human rights, in R v Mentuck it was stated by Iacobucci J (for the whole Supreme Court) that a publication ban had to be ‘necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent that risk’ and the ban was proportionate in terms.[112] Similarly, in Farquharson, it was held by Maxwell P (Nettle JA and Emerton AJA concurring) that an order was necessary when (citing the trial judge) there was ‘a real and substantial risk of prejudice to the fair trial of the accused and an interference in the course of justice’.[113] This may be seen to express the modern statement of the standard of necessity that is required.
[109][1913] AC 417, 437.
[110](1986) 5 NSWLR 465, 477.
[111](2010) 30 VR 248, 259 [35].
[112][2001] 3 SCR 442, 462 [32]; applied by Abella J for the court in Bragg [2012] 2 SCR 567, 574–5 [11].
[113](2010) 28 VR 473, 474 [6].
In Victoria, this general common law standard has been given general statutory force in s 18(1)(a) of the Open Courts Act, as follows:
18 Grounds for proceeding suppression order
(1)A court or tribunal other than the Coroners Court may make a proceeding suppression order if satisfied as to one or more of the following grounds—
(a)the order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means;
Example
Another reasonably available means may be directions to the jury.
…[114]
All of the words specifying this ground have work to do. The court must be ‘satisfied’ as to the ground, which means the onus lies upon the applicant; the order must be ‘necessary’; it must be necessary to prevent a ‘real and substantial risk’, that is, the risk must both ‘real’ and ‘substantial’, which is a high threshold; it must be one of ‘prejudice’ to the ‘proper administration of justice’; and it must be a risk that cannot be prevented by other ‘reasonably available means’. The ground raises two questions of which the court must be satisfied. The first is whether an order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice. If no such necessity or risk is established, the second question does not arise. The second is whether any such risk can be prevented by other reasonably available means. The ground is not established where the risk can be so prevented.
[114]Paragraphs 18(1)(b), (c), (d) and (e) specify grounds in relation to preventing prejudice to political interests going to national or international security, protecting the safety of persons, avoiding undue distress or embarrassment to complainants and witnesses in criminal proceedings relating to sexual offences or family violence offences and undue distress or embarrassment to child witnesses in criminal proceedings.
Applying this analysis to the present case, the applicant seeks a proceeding suppression order under s 17 that would prohibit publication of his name and address and also that of his family. He could still be identified in relation to the proceeding by the pseudonym ‘PQR’. The applicant must satisfy the court of two questions. The first is that it is necessary to make the order to prevent a real and substantial risk to the proper administration of justice, being his access to the court. The second is that any such risk cannot be prevented by other reasonably available means, being the existing pseudonym order.
To answer these questions, it is necessary to examine the principles applying to the making of pseudonym and like orders by reason of the impact of publicity arising out of legal proceedings upon parties, witnesses and others involved. This goes to whether the applicant has established that an order is necessary to prevent a real and substantial risk to the proper administration of justice. It is then necessary to examine the enforceability of the existing pseudonym order, under the law of contempt. This goes to whether any such risk cannot be prevented by other reasonably available means, being the enforcement of that order.
Making pseudonym orders: grounds (impact of publicity) and enforceability
What is a pseudonym order?
The expression ‘pseudonym order’ is a term of practical description and not a technical term of art. Such orders may take a variety of forms and have effect according to their particular terms. Typically, they are orders pursuant to which parties, witnesses and others involved in a legal proceeding must be described in documents filed and served in the proceeding or in evidence and submissions by a pseudonym. Pseudonym orders may be made before (as in the present case) or after the commencement of a proceeding.
The standard purpose of a pseudonym order is to ensure the proper administration of justice by protecting the identity of the party, witness or other person involved in relation to the legal proceeding. This purpose is indirectly achieved in most cases by an order requiring the person to be identified in relation to the proceeding only by reference to the pseudonym. Because a pseudonym order is usually the least restrictive option when some kind of limitation upon open justice and the free communication of information must needs be imposed, such an order may be made, and often is made, without making, or indeed in preference to making, an order directly restricting or prohibiting publication of the identity of the person in relation to the proceeding or information from which his or her identity could be derived.[115] However, for the purpose of ensuring greater protection when necessary, it is sometimes combined with a direct non-publication order, as the applicant seeks in the present case. An order of that kind is a suppression order under the Open Courts Act (see above).
[115]AA (2013) 296 ALR 353, 391 [193] (Bell J); Hunter [2015] VSC 112 (25 March 2015) [6] (Dixon J); R v Socialist Worker Printers and Publishers Ltd; Ex parte Attorney-General [1975] QB 637, 652 (Lord Widgery CJ, Milmo and Ackner JJ agreeing) (‘Socialist Worker Printers and Publishers’),
It is an unfortunate consequence of open justice that the children of parties to, and other people involved in, proceedings (including, for example, in criminal proceedings) may be subject to disadvantage when their parents' names are mentioned in court. This has never been a sufficient basis for intruding on the principle of open justice. …
In my view, the proper administration of justice will not be prejudiced if this case is heard in open court and in the absence of a suppression or non-publication order. A suppression order in the context of this case is not necessary to prevent the defeat of any relief claimed in the proceedings. It cannot be said that the public interest in suppressing publication significantly outweighs the public interest in open justice …[158]
[156][2017] NSWSC 274 (21 March 2017) [22].
[157][2011] NSWSC 1092 (12 September 2011).
[158]Ibid [11]–[12].
Courts in the United Kingdom have issued pseudonym orders and suppression orders to protect the identity of children when their highly personal privacy interests have been seriously and directly affected by participation in legal proceedings (for example, in the case of settlement approval hearings).[159] But they have refused to issue such orders in cases where children have not been parties, victims or otherwise participated in legal proceedings and have only been indirectly affected by the participation of, say, a parent.[160] This is not because a pseudonym order or suppression order cannot be made where the nature of the impact is indirect and arises only out of family connection. Where preservation of the integrity of the judicial process makes this necessary, it can be.[161] It is because, upon careful scrutiny, the evidence of the impact of the expected publicity about (say) the parent upon children has failed to establish the necessity for conferring anonymity on the moving party and qualifying the principles of open justice and free communication of information in respect of the proceeding.[162]
[159]See, eg, X v Dartford & Gravesham NHS Trust [2015] 1 WLR 3647, 3661–2 [34] (Moore-Bick, Black and Lewison LJJ).
[160]See, eg, S [2005] 1 AC 593, 606 [24]–[27] (Lord Steyn for the House of Lords); In re Trinity Mirror plc [2008] QB 770, 783–4 [32]–[34] (Sir Igor Judge P, Sir Mark Potter P, Wilson, Hallett LJJ and David Clarke J); In re Guardian News and Media Ltd [2010] 2 AC 697, 713 [21], 726 [76] (Lord Rodger for the Supreme Court); R (C) v Secretary of State for Justice [2016] 1 WLR 444, 446 [1] (Baroness Hale DPSC, Lord Clarke, Lord Wilson, Lord Carnwath and Lord Hughes JJSC agreeing); Khuja [2017] 3 WLR 351, 369–70 [29], 373–4 [34(3)] (Lord Sumption JSC, Lord Neuberger PSC, Baroness Hale DPSC, Lord Clarke and Lord Reed JJSC agreeing).
[161]As in A v British Broadcasting Corporation [2015] AC 588, 614–15 [76] (Lord Reed JSC, Baroness Hale DPSC, Lord Wilson, Lord Hughes and Lord Hodge JJSC agreeing).
[162]As in Khuja [2017] 3 WLR 351, 373–4 [34] (Lord Sumption JSC, Lord Neuberger PSC, Baroness Hale DPSC, Lord Clarke and Lord Reed JJSC agreeing).
I turn now the present case, beginning with the first question.
Real and substantial risk of prejudice to proper administration of justice
Applying these principles to the present case, I think the Secretary is right to suggest that substantial difficulties are raised by the applicant’s contention that a real and substantial risk of prejudice to the proper administration of justice would be presented if a suppression order were not made. I would give the following reasons.
I do not accept that the applicant has established any basis under s 18(1)(a) of the Open Courts Act for making a suppression order other than (possibly) reasonable deterrence. In particular, I would reject his suggestion that the appeal in this court would be rendered nugatory, or the subject matter of the appeal would be destroyed, were a suppression order not to be made. Whether he would obtain a student placement, or subsequent employment, were the full details of the proceeding in this court to be publicly known is a matter for negotiation between him and prospective employers. Any impediment due to his criminal antecedents would not be due to the proceeding in this court as the relevant criminal proceedings were conducted in public.
Nor do I accept that a suppression order is necessary directly to protect the privacy of the applicant’s family. The evidence does not establish that Herald and Weekly Times or other news media organisations intend to publish their names, addresses or photographs in relation to the proceeding. Having regard to the participation of Herald and Weekly Times in the proceeding, the court can act on the basis that the company would have informed the court if this were in contemplation, and it has not done so. In any event, publishing this information would frustrate the purpose of the pseudonym order, enforcement of which is a reasonably available other means of achieving the same end (see below).
The applicant is not entitled to a suppression order simply because he was successful in his application for a pseudonym order before Ginnane J. To obtain a suppression order, he must independently satisfy the procedural requirements of and the substantive tests in the Open Courts Act. It is relevant but far from dispositive that he has obtained a pseudonym order.
Without in any way criticising the procedure adopted by Ginnane J, the fact is that the pseudonym order was made without being opposed by the Secretary and without the presence of an effective contradictor. The presence of an effective contradictor, particularly but not only when[163] it is a news media organisation, significantly enhances the capacity of the court to understand how the principles of open justice and free communication of information are engaged in the individual case and also to determine whether the presumption in favour of disclosure of information should be displaced by making a suppression order (s 4). The court is best able to understand the importance of, and properly balance, the rights and interests that are engaged and the values that they represent through an adversarial process in which the parties and possibly others affected can contribute from the point of view of what is at stake for them. Such a process enables the court to take into account how determination of the application for a suppression order may affect the individual interests of the parties and others involved in the legal proceeding, in relation to both privacy and accessing the court, and also how it would affect the interests of news media organisations and the public, in relation to both open justice and free communication of information. This goes not only to whether an order should be made but, when found to be necessary, to ensuring that it is limited to the purpose for which it is made, that it does not apply to any more information than is necessary for that purpose and that its coverage is readily apparent from its terms (s 13(1)(a), (b) and (c)). Ginnane J did not have the benefit of such a process.
[163]This court supports a pro bono scheme conducted by the Victorian Bar for providing an effective contradictor in certain cases where none would otherwise appear to oppose an application for suppression order.
This is a case in which the applicant seeks a suppression order to preserve his anonymity in relation to the proceeding not because of the direct impact of publicity upon him as a participant but because of the indirect impact of publicity upon his family as non-participants. While I have pointed to examples in the decided cases of suppression orders being made in relation to participants in a proceeding to protect the privacy interests of non-participants (because, for example, the applicant might otherwise be reasonably deterred from accessing justice), they are relatively few in number. The connection between the applicant’s family and the proceeding in this court is indirect for they are simply not involved in the resolution of the matters in issue. They are not to be compared with persons who are victims of crime, witnesses, complainants of sexual abuse or domestic violence and others in similar categories who themselves have direct and fundamental privacy interests warranting protection, and the applicant’s case is not put upon that basis. I think the court needs to be cautious about making a suppression order in cases like the present.
The applicant has supplied evidence in support of the application for a suppression order to show how distressing and embarrassing for his family (including the children in it) publicity about him in relation to the proceeding would be. Taking into account the issues involved in the present case and the likely nature and duration of that publicity, a court would not easily conclude, even upon the basis of this evidence, that its impact would be significantly more than what the court would normally expect a family (including those children) to endure as the price paid by the community for open justice and free communication of information. Up to a certain point, the community expects such distress and embarrassment to be positively addressed within the family and, when children are involved, parents to be responsible for doing so. I am not sure that the applicant has established that this point would be exceeded in this case in the absence of a suppression order.
As the main reason for seeking the order, the applicant relies upon him being ‘reasonably deterred’ from accessing justice. I do not doubt the subjective sincerity of the applicant’s belief that he would be deterred from participating in the appellate process in this court should his anonymity in relation to the proceeding not be preserved. I think this belief is related to his commitment to be a responsible parent, step-parent and partner, one who takes the potential impact of publicity about his past drug-related activity upon his family seriously. Although this clearly augurs well for his rehabilitation, it does not of itself make the order necessary. An applicant’s subjective belief of such kind can amount to a medical or like condition, making a suppression order necessary in the interests of justice to prevent him or her from experiencing psychological harm.[164] That is not this case. Moreover, in the proven facts and circumstances, I am not sure I am persuaded that the indirect family impact would be so great as to justify an objective conclusion that the applicant would be reasonably deterred from participating in the proceeding.
[164]TTT and JJJ [2013] VSC 162 (25 March 2013) [18] (Cavanough J)
In the end, I have concluded that it would be inappropriate for discretionary reasons to reach a final conclusion on these issues. The applicant has legitimately sought and obtained pseudonym orders from VCAT and Ginnane J. He has participated in the proceedings in both of these jurisdictions upon this basis, right up until the reservation of judgment in the proceeding before me. Despite the absence of an effective contradictor until now, it would be fundamentally unfair and contrary to the interests of justice to make a finding that might call into question the foundation of those orders and indirectly threaten the settled basis upon which the applicant has engaged in legal processes under the Working with Children Act. As a solution to this unfairness, I most certainly would not adopt the course of giving the applicant the election of discontinuing his appeal, as suggested for Herald and Weekly Times, because it would bring the administration of justice into disrepute. It is not necessary for me to go into these matters further because I have reached a certain view as to whether a real and substantial risk of prejudice to the proper administration of justice can be prevented by other reasonably available means (s 18(1)(a)) which risk, for the purpose of analysis, I will assume has been established.
The question whether there are other reasonably available means turns on whether the applicant’s interests would be adequately protected by enforcement of the existing pseudonym order under the law of contempt. To that final issue I now turn.
Reasonably available other means: pseudonym orders and contempt
Under s 18(1)(a) of the Open Courts Act, a proceeding suppression order can only be made if the court is satisfied that it is necessary to prevent a substantial risk of prejudice to the proper administration of justice which ‘cannot be prevented by other reasonably available means’. The risk of that kind that I assume to be established is the risk constituted by the applicant being reasonably deterred from participating in the appeal proceeding were he to be identified by reference to his real name (or photograph) because of the shame, humiliation and embarrassment that this would cause his family. The issue that arises is whether the existing pseudonym order represents a reasonably available means of preventing this risk.
Whether the court is satisfied that it is necessary to make a proceeding suppression order because other reasonably available means cannot prevent a real and substantial risk of prejudice to the proper administration of justice is an objective question. It necessarily requires proper evaluation of the facts and circumstances in the light of what is at stake for the parties and others involved (such as news media organisations) in terms of the proper administration of justice. The purpose of this criterion is both to enable the court to make a proceeding suppression order when so called for and to ensure that this is confined to exceptional cases of true necessity. Whether there are not such means requires the court to determine whether it is not actually satisfied on the balance of probabilities that the means in question will not prevent the risk. The evidence about, and the court’s proper evaluation of, the nature and degree of the risk will influence whether it is not so satisfied and how effective the means are likely to be in preventing it, having regard to the identified stakes. I turn now to that evaluation.
The evidence in the present case establishes that Herald and Weekly Times is interested in the applicant’s appeal in this court and his review proceeding in VCAT. It has published a news article and editorial piece about the case already. It intends to publish more articles and possibly editorial pieces on the same subject. It asserts a freedom to use the applicant’s real name in publications relating to the proceeding despite the pseudonym order because (apparently) it has independently discovered his identity. There is no evidence that Herald and Weekly Times intends to identify any member of the applicant’s family and I think it is unlikely that it will do so.
There is no evidence that other news media organisations are interested in the applicant’s case, although this is possible. There is no evidence that other such organisations assert an entitlement to use the applicant’s real name (or photograph), or those of the members of his family, in publications relating to the appeal proceeding by reason of having independently discovered his or their identity or otherwise. On the evidence and taking into account the general facts and circumstances of the proceeding and its subject matter, I think that this is unlikely.
Contrary to the submissions made by the applicant, the nature and level of the risk is therefore very much confined to likely use of the applicant’s real name (and possibly use of his photograph) by Herald and Weekly Times in publications relating to the proceeding. This, I have assumed, constitutes a substantial risk of prejudice to the proper administration of justice by reasonably deterring him from participation in the proceeding by reason of the indirect effect of such publications upon his family.
The application of the law of contempt requires the court to identify the terms and purpose of the pseudonym order made by Ginnane J. The terms of the order permit the applicant to commence the appeal proceeding against the Secretary ‘without divulging the name of the [applicant] and in lieu using the pseudonym “PQR”’. The purpose of the order is to ensure that the applicant is not reasonably deterred from participating in the proceeding by reason of the effect of publications identifying him in relation to the proceeding upon his family, in other words, to ensure that his anonymity is maintained in relation to the proceeding.
I am not satisfied that the assumed risk cannot be prevented by the other reasonably available means of enforcement action to ensure the purpose of the pseudonym order under the law of contempt, as submitted by the Secretary. I reject the submissions made for Herald and Weekly Times that, despite the order, it would be at liberty to use the applicant’s real name in publications in relation to the proceeding if his identity has been independently discovered. For the reasons I give below, it would be contempt of court to do so because it would frustrate the purpose of the order, of which Herald and Weekly Times has notice and knowledge. Publishing a photograph of the applicant in relation to the proceedings comes into the same category. I reject the submissions made for the applicant that there is uncertainty about the application of the law of contempt to Herald and Weekly Times in relation to the intended publications. As there is no evidence that other organisations have discovered the applicant’s identity and intend to use his real name (or photograph) in publications in relation to the proceeding, I reject his submission that it is necessary to make a proceeding suppression order because other organisations may not have had that notice or knowledge.
The pseudonym order was made as between the parties to the proposed appeal proceeding, being the applicant and the Secretary, and did not purport to bind non-parties, such as Herald and Weekly Times. While Herald and Weekly Times is not a party to the appeal proceeding and is not directly bound by the order, the evidence presented, and its participation, in this proceeding establishes that it has notice and knowledge of the terms and purpose of the order. If Herald and Weekly Times were to use the applicant’s real name (or photograph) in publications in relation to the proceeding, this would undermine and frustrate the purpose of the order, which is to ensure his anonymity in that relation. Under the law of contempt, the order can therefore be enforced against it. As was held by Kaye J in The Queen v Hinch:
it is well established that a person, not directly bound by an order, is guilty of contempt of court if that person, with knowledge of the order, does an act which infringes, or frustrates, the efficacy of the order, and thus interferes with the due administration of justice.[165]
[165][2013] VSC 520 (2 October 2013) [55].
Herald and Weekly Times points to the limited terms of the pseudonym order, which do not include a non-publication element. Having done so, it first relies upon its own ordinary freedom to examine public sources for the purpose of discovering the actual identity of a person protected by a pseudonym order in a legal proceeding. It has apparently done this in respect of the applicant. It then relies upon the principle of freedom of communication to justify publication of the person’s real name in relation to the proceeding, in this case the applicant. These propositions must be rejected.
It would seriously undermine the proper administration of justice to permit non-parties with notice or knowledge of the purpose of a pseudonym order made necessarily for the conduct of legal proceedings to take action, with impunity, that would have the effect of frustrating the purpose of the order. It is made clear by Lord Diplock in the leading case of Attorney-General v Leveller Magazine Ltd that, under the law of contempt, an order or ruling in the nature of a pseudonym order has potential legal consequences for persons other than the parties to the case and those who were present in the courtroom when the order was made:
where (1) the reason for a ruling which involves departing in some measure from the general principle of open justice within the courtroom is that the departure is necessary in the interests of the due administration of justice and (2) it would be apparent to anyone who was aware of the ruling that the result which the ruling is designed to achieve would be frustrated by a particular kind of act done outside the courtroom, the doing of such an act with knowledge of the ruling and of its purpose may constitute a contempt of court, not because it is a breach of the ruling but because it interferes with the due administration of justice.[166]
As can be seen, the basis of this liability is not that the interference would constitute a breach of the order but that it would interfere with the due administration of justice.
[166][1979] AC 440, 452; see further 473 (Lord Scarman), 456–7 (Viscount Dilhorne), 468 (Lord Russell).
These principles are well-accepted in Australia. For example, in Police Tribunal of NSW, McHugh JA (Glass JA agreeing) stated in the Court of Appeal of the Supreme Court of New South Wales:
An order made in court is no doubt binding on the parties, the witnesses and other persons in the courtroom. But an order purporting to operate as a common rule and to bind people generally is an exercise of legislative — not judicial-power. Nevertheless, conduct outside the courtroom which deliberately frustrates the effect of an order made to enable a court to act effectively within its jurisdiction may constitute a contempt of court. But the conduct will be a contempt because the person involved has intentionally interfered with the proper administration of justice and not because he was bound by the order itself. I think that the above statement of the applicable principles is in accordance with the way in which this branch of the law has developed.[167]
This statement was approved by Buchanan JA (in dissent, but not on this point) in the Court of Appeal of this court in News Digital Media,[168] and followed by Kaye J in this court in The Queen v Hinch.[169]
[167](1986) 5 NSWLR 465, 477; see also Attorney-General for New South Wales v Mayas Pty Ltd (1988) 14 NSWLR 342, 355 (McHugh JA, Hope JA agreeing).
[168](2010) 30 VR 248, 279 [123].
[169][2013] VSC 520 (2 October 2013) [60].
Pertinent illustrations of the application of these principles include R v Savvas, where Hunt J ordered that certain witnesses in a criminal trial would be referred to by pseudonyms and that any matter likely to lead to their identification was not to be reported by those in court.[170] In the interest of keeping justice as open as possible, his Honour preferred to adopt this course rather than allowing their real names to be used subject to a non-publication order.[171] He made it quite clear that subsequent publication of the real names would be a contempt:
If the two witnesses are addressed and referred to throughout the trial by pseudonyms, the media will not be entitled to publish their true identities as part of a fair report of court proceedings open to the public. There is no room for the inadvertent or careless use of their names in such a report. If the media wish to go beyond publishing such a report, they will be disclosing the identities of those witnesses only because they have deliberately set out to make such a disclosure. If an order has been made at the commencement of the trial that such identities should not be disclosed (even though not binding on the media), and if the media have already been warned of the reason why those names are being withheld, the inference will be clear that their disclosure was made with the intention of frustrating or interfering with that order. They will in those circumstances be guilty of contempt …[172]
His Honour went on to explain his purpose in making the order and its legal effect:
The difference between the situation where the real names of the witnesses are used in court and a non-publication order is made and the situation where pseudonyms are used and such an order is made may appear on the surface to be slight, but in practice the difference is significant. In the latter, any disclosure by the media must be very deliberate indeed on its part; there is no room for error. With very few exceptions, the media may be trusted to act with a due sense of responsibility in matters such as this. The courts, having done everything reasonably possible consistently with justice to keep the proceedings open to the public, must proceed upon the basis that deliberate acts designed to frustrate or interfere with the administration of justice will receive condign punishment as contempts.[173]
[170](1989) 43 A Crim R 331.
[171]Ibid 339.
[172]Ibid 336 (footnote omitted).
[173]Ibid.
Notice or knowledge is an element of the potential liability of a person under the law of contempt for engaging in conduct that frustrates the purpose of an order. With express reference to judgments in the House of Lords in Leveller Magazine,[174] McHugh JA (Hope JA agreeing) dealt with this element in Attorney-General for New South Wales v Mayas Pty Ltd.[175] Speaking of the rule that applies when a person who is not bound by an order says or does something that has the effect of frustrating or interfering with it, his Honour stated:
the person will be guilty of contempt only if he is aware of the order and it is apparent to anyone that the effect of the order would be frustrated by his act … It is not necessary that the court should have given a warning concerning the purpose of its order. It is enough that the purpose of the order speaks for itself…[176]
Endorsing particularly the judgment of Lord Diplock in Leveller Magazine, his Honour went on to state:[177]
However, when no warning or explanation is given, the purpose of the order must be clear for ‘no one ought to be exposed to penal sanctions for criminal contempt of court for failing to draw an inference or recognise an implication as to what it is permissible to publish about those proceedings, unless the inference or implication is so obvious or so familiar that it may be said to speak for itself’.[178]
[174][1979] AC 440, 452 (Lord Diplock), 456 (Viscount Dilhorne), 458 (Viscount Dilhorne), 467 (Lord Edmund-Davies), 471–2 (Lord Scarman).
[175](1988) 14 NSWLR 342.
[176]Ibid 355 (footnotes omitted).
[177]Ibid.
[178]Leveller Magazine [1979] AC 440, 453 (Lord Diplock).
In this court in Hunter, Dixon J considered the scope of pseudonym orders.[179] His Honour stated that they were preferable to a full suppression order because ‘there is complete openness and accountability in the court’s processes, save that an identity is not revealed’.[180] Following Savvas and Mayas, his Honour stated that ‘a potential liability in contempt may arise on breach of the order’.[181] By reference to the same authorities, in RN, his Honour held that a pseudonym order ‘will not directly restrain conduct by publication, although a potential liability in contempt may arise on breach of the order’.[182]
[179][2015] VSC 112 (25 March 2015).
[180]Ibid [6].
[181]Ibid.
[182](2014) 41 VR 699, 702 [13] (footnotes omitted).
It is not necessary to prove that a person charged with contempt of court in such a situation was aware of the full terms of the relevant order. As explained in Madeira v Roggette Pty Ltd (No 2) by Thomas J (Ambrose J agreeing) when rejecting an appeal against a contempt finding by a trial judge:
In the course of his judgment [the trial judge] made the following observation:
A company director who, as here, knew that a court order had been made, knew some of its terms, appreciated its rationale, and appreciated that taking certain steps would defeat its purpose entirely, could hardly repel contempt proceedings by establishing that he had not seen the order and read all of its detailed provisions, even though he could have done so had he wished.
… I agree with the above observation and accept that it is not necessary to prove that a person charged with contempt was aware of the full terms of the court order. It is enough if he knows the substance of the prohibition and knowingly acts contrary to it.[183]
[183][1992] 1 Qd R 394, 403 (footnotes omitted).
The sufficiency of the notice required was discussed by McGarvie J in this court in Foley v Herald-Sun TV Pty Ltd.[184]His Honour held that a television journalist would be guilty of contempt although not personally bound by the relevant order if:
at the time when he showed the film he believed that an injunction had been granted or if at that time he had received such notice as in the circumstances would have led a reasonable person in his position to refrain from showing the film. A reasonable person would be a responsible citizen desirous of acting in accordance with any order of a court.[185]
Thus the question is whether, in the relevant facts and circumstances, the person charged had such knowledge of the order as would have led a reasonable person in his or her position to understand that the publication would frustrate the purpose of the order.
[184][1981] VR 315.
[185]Ibid 319.
These matters were discussed by Kaye J in The Queen v Hinch, which led his Honour to formulate the elements of the offence of contempt of court where a non-party is charged with frustrating a court order.[186] He held that the prosecution must establish beyond reasonable doubt:
(1) That the respondent published the article …
(2)That the publication by the respondent of the article frustrated the effect of the order by containing material which was contrary to or which infringed the terms of the order.
(3)That at the time at which the respondent published the article, he had sufficient knowledge of the terms and effect of the order, that a reasonable person would have understood that the continued publication of the article … would have the tendency to frustrate the efficacy of the order.[187]
[186][2013] VSC 520 (2 October 2013).
[187]Ibid [52].
The Queen v Hinch was a case of a person not bound by an order publishing material that the order directly prohibited from publication. Therefore these elements do not exactly apply in the present case. As submitted for the applicant, the pseudonym order here is neither expressed in terms of a non-publication order nor separately supported by a non-publication order, as in some of the cases referred to in argument and in submissions. This is a case where the contempt would not be constituted by a breach of the order. The contempt would be constituted by a non-party with knowledge of the purpose of the order frustrating its efficacy by doing directly the very thing that it sought indirectly to prevent, namely identifying the applicant in relation to the proceeding. As applied to a publication of this kind, I think the elements of the offence may be expressed as follows:
(a) the respondent published the article etc;
(b)the publication frustrated the purpose of the pseudonym order by identifying the applicant in relation to the proceeding; and
(c)at the time of publication, the respondent had such knowledge of the purpose of the order as would have led a reasonable person to understand that the publication would frustrate that purpose.
Herald and Weekly Times submits that the pseudonym order was not intended to prevent the real name of the applicant being used in publications relating to the proceeding in circumstances where the applicant’s identity has been discovered from independent sources. There are examples in the decided cases of judges taking precautionary action against such eventualities. For example, in Southend Borough Council v CO and DW, MacDonald J was very recently moved to make this statement at the start of a judgment that was made anonymous by using pseudonyms to protect the privacy of vulnerable children:
For the avoidance of doubt, the strict prohibition on publishing the names and addresses of the parties and the children will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain. All persons, including representatives of the media, must ensure that these conditions are strictly complied with. Failure to do so will be a contempt of court.[188]
But I think it would be apparent to any reasonable person that the purpose of a pseudonym order made by a court is to protect the anonymity of the subject of the order in relation to the proceeding and that this purpose would be frustrated by publication of the name (or photograph) of the person, however discovered, in that relation. In particular, I think any reasonable person would understand that the purpose of the order made by Ginnane J was to protect the anonymity of the applicant in relation to the proceeding and that this purpose would be frustrated by publication of his name (or photograph) in the circumstances proposed by Herald and Weekly Times.
[188][2017] EWHR 1949 (Fam) (28 July 2017) (see statement preceding judgment) (‘Southend Borough Council’).
Moreover, as was submitted by the Secretary, the Herald and Weekly Times journalist was present in court at the start of the hearing and witnessed the discussion about the anonymous way in which the applicant would be referred to by reason of the order. The remarks that I made to the journalist made clear that the effect of the order was that the applicant could not be identified but, subject to that limitation, the journalist could stay and report the case. These remarks amounted to the kind of precautionary statement that was made by MacDonald J in Southend Borough Council. They communicated to the journalist (and therefore to Herald and Weekly Times) the knowledge that the purpose of the order was to ensure that the applicant would not be identified in relation to the proceeding, something that was reinforced constantly in the proceeding in which the company participated. With knowledge of this purpose, it would be a clear contempt of court for Herald and Weekly Times, even as a non-party to the proceeding, to use the applicant’s real name (and address or photograph) in publications relating to the proceeding, however his identity was discovered, because it would frustrate that purpose. So would publication of the names (and addresses or photographs) of his family.
To succeed under this element of the ground in s 18(1)(a) of the Open Courts Act, the applicant must satisfy me that the assumed risk ‘cannot be prevented by other reasonably available means’. In my view, employing the law of contempt to ensure the purpose of the pseudonym order made by Ginnane J represents a reasonably available means of preventing that risk. As the applicant has not satisfied me to the contrary, the application for the suppression order will be dismissed.
Conclusion
The applicant has the benefit of a pseudonym order, which was made without notice to news media organisations, by which he was permitted to commence the appeal in this court, and be referred to in that proceeding, as ‘PQR’. The main reason why this order was made is that the court was satisfied that the applicant’s family, including his children, would indirectly suffer humiliation, distress and embarrassment were he to be identified in relation to the proceeding by reference to his unusual name. The court was satisfied that, in the absence of a pseudonym order, the applicant might for that reason be reasonably deterred from commencing the appeal.
Herald and Weekly Times has apparently ascertained the applicant’s real name from other publicly available sources. Commendably, it has informed the court of its belief that it is free to use that name in publications about the proceeding without breaching the pseudonym order. Because the applicant fears that Herald and Weekly Times will do so, he has applied for a suppression order prohibiting publication of the name and address (and photograph) of himself and the members of his family.
Courts operate according to fundamental principles of the common law that legal proceedings are conducted in public and that anybody, including news media organisations, can attend and report what occurs. These principles have constitutional significance and are also protected by the right of freedom of expression in s 15(2) and the right to a fair and public hearing in s 24(1) of the Charter of Human Rights and Responsibilities Act. In exceptional cases, the court may qualify the operation of these principles by making a pseudonym or suppression order.
The Open Courts Act contains an important presumption that the court must take into account when determining whether to make a suppression order. The presumption is in favour of the free disclosure of information. It was enacted for the purpose of strengthening and promoting the principles of open justice and free communication of information. The presumption, as well as certain notice procedures, manner and form requirements and substantive grounds, have been specified in the Act to ensure that suppression orders are kept for exceptional cases of true necessity.
Taking this presumption into account, I have determined that the applicant’s application for a suppression order should be refused. I have serious reservations about whether he has established that such an order is necessary to prevent a real and substantial risk to the proper administration of justice. However, for discretionary reasons more fully explained in the judgment, I will assume this in his favour. But, making this assumption, the applicant has not satisfied me that the risk cannot be prevented by other reasonably available means.
The other reasonably available means of preventing the assumed risk is enforcement of the existing pseudonym order under the law of contempt of court. The making of that order was not covered by the procedures and tests (currently) specified in the Open Court Act because it was a pseudonym order, not a suppression order. Nevertheless, news media organisations are expected to respect the administration of justice by giving effect to orders of the court, including pseudonym orders, of which they have notice or knowledge. This obligation extends beyond not breaching the terms of an order to include not engaging in any publication that would frustrate its purpose.
As Herald and Weekly Times are aware, the purpose of the pseudonym order in the present case is to ensure the anonymity of the applicant in relation to the proceeding. Were it to use his real name (or photograph) in a publication in relation to the proceeding, this would clearly frustrate that purpose. Therefore, enforcement of the existing pseudonym order under the law of contempt represents a reasonable available means of ensuring the anonymity of the applicant. The application has not persuaded me to the contrary. The application for the suppression order will be dismissed.
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