Re Hogan; Ex parte West Australian Newspapers Ltd
[2009] WASCA 221
•8 DECEMBER 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: RE HOGAN; EX PARTE WEST AUSTRALIAN NEWSPAPERS LTD [2009] WASCA 221
CORAM: McLURE P
OWEN JA
MILLER JA
HEARD: 12 AUGUST 2009
DELIVERED : 8 DECEMBER 2009
FILE NO/S: CACV 14 of 2009
MATTER :Application under the Magistrates Court Act 2004 (WA) s 36 for a review order against MS PAMELA HOGAN, Magistrate of the Magistrates Court at Perth
EX PARTE
WEST AUSTRALIAN NEWSPAPERS LTD
First AppellantCHANNEL SEVEN PERTH PTY LTD
Second Appellant
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :EM HEENAN J
Citation :RE PAMELA HOGAN MAGISTRATE OF THE MAGISTRATES COURT AT PERTH; EX PARTE WEST AUSTRALIAN NEWSPAPERS LTD [2009] WASC 31
File No :CIV 2552 of 2008
Catchwords:
Administration of justice - Provision of court documents to persons not involved in proceedings - Conditions imposed by magistrate upon access to videotape tendered as evidence in criminal trial - Non-publication order - Order suppressing names of child victims - Whether orders of magistrate infringed principle of open justice - Scope of the principle
Legislation:
Children's Court of Western Australia Act 1988 (WA), s 35
Criminal Procedure Act 2004 (WA), s 171
Evidence Act 1906 (WA), s 106A - s 106T
Magistrates Court (General) Rules 2005 (WA), r 41
Magistrates Court Act 2004 (WA), s 33, s 36
Supreme Court Act 1935 (WA), s 60(1)(f)
Victims of Crime Act 1994 (WA), s 3(1)
Result:
Leave to appeal refused
Category: A
Representation:
Counsel:
First Appellant : Mr J D MacLaurin
Second Appellant : Mr J D MacLaurin
Solicitors:
First Appellant : Edwards Wallace Lawyers
Second Appellant : Edwards Wallace Lawyers
Case(s) referred to in judgment(s):
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Coles v Wood [1981] 1 NSWLR 723
Craig v The State of South Australia (1995) 84 CLR 163
Mallet v Mallet (1984) 156 CLR 605
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24
Nahq v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 377
QBE Insurance Ltd v Switzerland Insurance Workers Compensation (NSW) Ltd (1996) 70 ALJR 281
Raybos Australia Pty Ltd v Jones [1985] 2 NSWLR 47
Re Bromfield; Ex parte West Australian Newspapers Ltd (1991) 6 WAR 153
Re Her Honour Chief Judge Kennedy; Ex parte West Australian Newspapers Ltd [2006] WASCA 172
Re Media Entertainment & Arts Alliance; Ex parte Hoyts Corporation Ltd (1994) 119 ALR 206
Re Robins SM; Ex parte West Australian Newspapers Ltd (1999) 20 WAR 511
Russell v Russell (1976) 134 CLR 495
McLURE P: The appellants seek leave to appeal (if required) and to appeal from an order made by EM Heenan J on 19 January 2009 dismissing their application for review orders under s 36 of the Magistrates Court Act 2004 (WA).
The appellants applied to review an order made by Magistrate Hogan on 25 September 2008 prohibiting the publication of a videotape adduced in evidence in criminal proceedings against two women charged with assaulting children in their care at a childcare centre (the republication prohibition order). There were seven assault charges against each accused. The assaults were said to have been effected by tying together the legs of the children. The videotape contains images of children lying in cots or on mattresses and shows the manner in which some of the children's legs were tied. The republication prohibition order was made under r 41 of the Magistrates Court (General) Rules 2005 (WA) (the Rules).
The appellants also applied to review an order made by the learned magistrate on 25 September 2008 prohibiting the publication of the names of the child complainants without the written permission of the children's parents (the non‑identification order). That order was made under s 171(4) of the Criminal Procedure Act 2004 (WA).
The background to the matter is as follows. The assault trial took place before the learned magistrate in June 2007. The trial was conducted in open court and widely reported. The magistrate found that the tying constituted an assault but concluded that, save for one charge against one accused, the prosecution was unable to prove the party responsible for each assault.
On 11 July 2007, the magistrate refused the appellants' request under s 33(5) of the Magistrates Court Act for a copy of the videotape on the ground that neither appellant was 'a party interested' for the purpose of that subsection. That decision was set aside by Blaxell J under s 36 of the Magistrates Court Act (the first review proceedings). The matter was referred back to the magistrate to determine whether any condition(s) for the release of the videotape should be imposed under r 41 of the Rules. On the reference back, the magistrate held that the appellants were entitled to a copy of the videotape and made the republication prohibition order and non‑identification order. The appellants then applied to the Supreme Court for a review of those orders under s 36 of the Magistrates Court Act (the second review proceedings). EM Heenan J was not satisfied that the appellants had an arguable case and refused the review orders.
Whether leave to appeal required
No appeal lies to the Court of Appeal from an interlocutory order or judgment without leave save in specified circumstances not presently relevant: s 60(1)(f) of the Supreme Court Act 1935 (WA).
Section 36 of the Magistrates Court Act replaced the prerogative writ procedures formerly available for the judicial review of decisions of a magistrate or other court officer. The review order in s 36(1) is very closely analogous to that of an order nisi for a prerogative writ. There is no relevant distinction of any consequence. The weight of authority is that the refusal of an order nisi for a prerogative writ is an interlocutory decision for which leave is required: Re Media Entertainment & Arts Alliance; Ex parte Hoyts Corporation Ltd (1994) 119 ALR 206, 207; Coles v Wood [1981] 1 NSWLR 723, 734; Nahq v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 377.
Accordingly, the appellants require leave to appeal. They must show that the decision of the primary judge is wrong or attended with sufficient doubt to justify the grant of leave and that substantial injustice would be done if the decision remained unreversed.
The relevant statutory framework
Section 33 of the Magistrates Court Act relevantly provided at the material time:
(5)In respect of criminal proceedings in the Court, where a conviction or order is made, or a charge dismissed, any party interested therein is entitled on request ‑
(a)to receive a copy of ‑
(i)the prosecution notice containing the charge;
(ii)the record of proceedings;
(iii)any statement of the accused's convictions that is tendered in the proceedings; and
(iv)the conviction or order,
from the officer who has custody thereof, subject to payment of an amount calculated in such manner as is prescribed by regulations; and
(b)to view any exhibit in the proceedings that is in the possession of an officer of a court and that is not reasonably capable of being copied, at a time and place appointed by that officer.
(6)In subsection (5)(a)(ii) 'record of proceedings' means a record of the evidence however made whether ‑
(a) …
(b) …
and includes any record of the reasons for the decision and a copy of any exhibit that is reasonably capable of being copied.
Thus, the appellants were entitled to a copy of the videotape under s 33(5)(a)(ii).
Rule 41 of the Rules provided at the relevant time:
Conditions on access may be imposed
(1)A registrar or magistrate granting a request referred to in rule 37 or an application referred to in rule 39 may impose any conditions on the applicant's access to the record as is just.
(2)Without limiting subrule (1), conditions may be imposed ‑
(a)to prevent the record from being damaged, interfered with or lost;
(b)to prevent the improper use or publication of the record or any information in it.
Section 171 of the Criminal Procedure Act relevantly provides:
(2)Subject to this section, all proceedings in a court are to be in open court and the courtroom where the court sits is to be open to the public unless this Act or the rules of court or another written law provides otherwise.
…
(4)On an application by a party to the case, or on its own initiative, a court may, if satisfied it is in the interests of justice to do so ‑
…
(b)make an order that prohibits the publication outside the courtroom of the whole of the proceedings, or a part or particular of them specified by the court.
(c)make an order that prohibits or restricts the publication outside the courtroom of any matter that is likely to lead members of the public to identify a victim of an offence.
The magistrate also had regard to the Victims of Crime Act 1994 (WA). By that Act, judges, magistrates and other judicial officers are authorised to have regard to and apply the guidelines of sch 1 and should do so to the extent that it is within or relevant to their function to do so and practicable for them to do so (s 3(1)).
The guidelines relevantly provide that a victim should be treated with courtesy and compassion and with respect for the victim's dignity (1) and that the privacy of a victim should be protected (5).
Section 36 of the Magistrates Court Act relevantly provides:
(1)If a person is or would be aggrieved by one or more of the following ‑
(a)the failure of a Court officer to do any act or make any order or direction ‑
(i)on the ground that the officer is under a duty to do the act or make the order or direction; or
(ii)on any ground that might have justified an order of mandamus;
(b)an act, order or direction that a Court officer proposes to do or make ‑
(i)on the ground that it would be without jurisdiction or power or would be an abuse of process; or
(ii)on any ground that might have justified an order of prohibition;
(c)an act, order or direction done or made by a Court officer ‑
(i)on the ground that it was done or made without jurisdiction or power or is an abuse of process; or
(ii)on any ground that might have justified an order of certiorari,
the person may apply to the Supreme Court for an order (a review order) that requires the Court officer and any person who will be affected by the act, order or direction to satisfy the Supreme Court at a hearing that the act, order or direction should or should not be done or made or set aside, as the case requires.
Magistrate's reasons
The magistrate identified her task as being to take into account all relevant considerations in the exercise of the discretion in r 41 of the Rules and in s 171(4) of the Criminal Procedure Act. She identified one such consideration as the principle of open justice and noted that the exceptions to the principle are few and strictly defined. She identified other relevant considerations as follows:
(a)an experienced journalist, now able to have the videotape in front of him or her, should be in a position to accurately describe how the sheets were tied and the legs positioned in such a way as to assist the public in understanding the conclusion reached by the court;
(b)there was a realistic potential for further adverse reactions from the public with detrimental consequences to the owners and staff of the childcare centres, should the videotape be published;
(c)re‑agitation of the issue by way of publication of the videotape had the ability to impact upon both the accused and the owners of the childcare centre in terms of their ability to re-establish their lives;
(d)the victims were very young children who are shown in situ;
(e)publication of the videotape may discourage victims or those concerned for the welfare of children to bring concerns to the attention of authorities;
(f)the publication of the video footage had the real potential to reactivate distress to the parents and families of the children in question.
The magistrate then concluded as follows:
The test in this case is whether the public, on the information made available to it, can fully understand the criminal proceedings which took place. At the end of the trial written reasons were provided for the conclusions reached. The videotape goes to one aspect of the case. That is, how it was that the children's legs were tied together. With the videotape to assist, any experienced journalist should be well able to explain how it was that the legs were tied and thus adequately assist the public to understand how it was that the court concluded that these children were assaulted.
In exercising the discretion available to the court, the court must determine whether any interest that the public may have in seeing the images of the children as captured on the videotape is outweighed by any valid concern of any other party.
Parliament has modified the principle of open justice with respect to victims via both the Victims of Crime Act and the Criminal Procedure Act. Here the fact that the children are victims authorises the court to apply the guidelines set out in schedule 1 to the Victims of Crime Act. The fact that the film depicts very young children who are the victims of the alleged offences AND the fact that the children are depicted in situ are facts that weigh against publication of the video footage given the realistic potential for publication to have a detrimental impact on the children and their families.
At the hearing for leave to appeal, the appellants adduced hearsay evidence to the effect that a West Australian Newspapers Ltd reporter who had attended the assault trial found it difficult to accurately convey in words the precise manner in which the children's legs were bound together. There was also double hearsay of the same concern said to have been expressed by other reporters covering the trial.
Grounds of appeal
The grounds on which the appellants seek to appeal from the dismissal of the application for a review order in the second review proceedings are in substance as follows:
(1)the primary judge failed to address the appellants' contention that the magistrate failed to consider or properly consider conditions short of an absolute prohibition on publication of the videotape and thereby erred in finding a total prohibition was 'as is just' within the meaning of r 41;
(2)it was arguable that the magistrate applied the wrong test or misapplied the test of what conditions are 'as is just' in the circumstances;
(3)the primary judge erred by regarding the width of the discretion under r 41 as precluding the appellants' irrelevant considerations ground being arguable. Further, the appellants' ground was not confined to strict irrelevancy, but extended to those considerations being speculative, without basis and incapable of providing a proper foundation for a complete prohibition upon publication;
(4)it was arguable that the magistrate committed jurisdictional or other reviewable error by failing to apply the proper test in s 171 or alternatively, misapplying the test of whether the suppression order was 'in the interests of justice' under s 171(4);
(5)it was arguable that the magistrate erred in taking the view that there was a discernable public interest to avoid the detrimental impact on children when that is not the proper test or an appropriate basis for non‑publication under s 171;
(6)the primary judge erred in refusing to hear an application for an order and in failing to make an order pursuant to s 36(5)(b) of the Magistrates Court Act that the appellants' motion for a review order be remitted to the District Court and dealt with as an appeal to the District Court.
The appellants' position both before the primary judge and this court was that (1) section 36 of the Magistrates Court Act confers on the Supreme Court a judicial review power, being a power to review the legality of the magistrate's decision; (2) the grounds of judicial review correspond with the broad common law grounds of review rather than the narrow review grounds ordinarily applicable to courts and analogous tribunals (see Craig v The State of South Australia (1995) 84 CLR 163); and (3) the test for the grant of a review order under s 36(1) of the Magistrates Court Act is that there be an arguable case for relief, being one that has some prospects of success. It is appropriate for the purpose of these proceedings to assume the correctness of each of these propositions.
In judicial review, the court can only grant relief if there is a jurisdictional error of law or, where certiorari is sought, a non‑jurisdictional error of law on the face of the record. Before addressing the individual grounds of appeal it is appropriate to make some observations as to the scope of, and inter‑relationship between, the broad grounds of judicial review. Those grounds include misconstruing or misapplying the statutory source of the relevant power, failing to take into account a relevant consideration, taking into account an irrelevant consideration, improper purpose, unreasonableness or irrationality and breach of the rules of procedural fairness.
A relevant consideration is one which the decision‑maker is expressly or impliedly obliged to take into account in the course of reaching the decision under review: Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24, 39. The legislation in question may specify the particular matters that are to be considered or the obligation may arise by implication from the subject matter, scope and purpose of the legislation. Thus, the identification of relevant and irrelevant considerations is intimately connected with matters relevant to the proper construction of the statute. Moreover, the categories of mandatory relevant considerations and irrelevant considerations do not cover the entire field. A factor may be relevant in a broad sense and not fall within either category. To avoid confusion, I will refer to these as 'relevant factors'.
Giving too little (or too much) weight to a relevant consideration only gives rise to an error of law if it amounts to a failure to exercise the discretion actually entrusted to the court: Mallet v Mallet (1984) 156 CLR 605, 614.
There is no error of law in making a wrong finding of fact. However, the making of findings and the drawing of inferences in the absence of any evidence to support them is an error of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355 ‑ 356.
Ground 1 - failure to consider a ground of review
The appellants claim the primary judge erred in failing to consider their claim in review ground 4 that the magistrate 'failed to consider, or properly consider', imposing conditions short of a complete prohibition on publication of the videotape. This ground relates to the republication prohibition order.
The primary judge did not in his reasons expressly consider or determine review ground 4. A judge considering an application for a review order is under a duty to consider each ground of review advanced by the applicant, determine whether they satisfy the threshold test and give reasons for the decision: QBE Insurance Ltd v Switzerland Insurance Workers Compensation (NSW) Ltd (1996) 70 ALJR 281, 284. However, there will be no material error if the review ground does not raise an arguable case for relief.
An alleged failure to 'properly' consider a matter is not a reviewable error of law known to the common law and does not otherwise fall within s 36(1) of the Magistrates Court Act. Moreover, there is no factual foundation for an arguable claim that the magistrate failed to consider conditions short of a complete prohibition upon publication. The magistrate expressly notes in her reasons that the appellants offered to accept a condition that the faces of any children depicted in the videotape be pixilated prior to any publication but submitted that no other condition be attached. The magistrate expressly considered that option. She said:
Once published, modern technology enables any member of the public (whether well‑intentioned or not) to possess the images captured on the videotape. Whilst the children are still of a young age, should the videotape be published then their images could reappear at any time in the future including at a time when the child victims are old enough to be impacted detrimentally by having such footage in the public realm. There is no guarantee that the pixilation of the faces of the children along with the suppression of their names would protect them from the potential embarrassment and/or distress in the future.
There is no merit in review ground 4 and thus no merit in appeal ground 1.
Ground 2 - application of the wrong test or misapplication of the test (r 41)
As I understand the submissions advanced on behalf of the appellants, they contend the 'correct test' under r 41 is that the magistrate may impose any condition on access as is just in accordance with the law, in particular the principle of open justice which requires that any departure from open justice be both exceptional and as narrow as reasonably necessary.
The expression 'the principle of open justice' is frequently used judicially and extra‑judicially in a way that can obscure rather than enlighten. Gibbs J in Russell v Russell (1976) 134 CLR 495, 520, stated the general rule as follows:
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' … 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.
The 'ordinary rule' goes no further than the conduct of court proceedings in public. It is subject to a number of exceptions which permit a departure from the general rule in a variety of ways such as by excluding the public from the proceedings or limiting the republication of information or evidence referred to or adduced in the proceedings. However, the ordinary rule is satisfied if persons are free to attend court and report on the proceedings without restriction; it does not require the court to permit the broadcast (by television or otherwise) of court proceedings. Whether it justifies it is a different policy (not legal) question. Moreover, the ordinary rule is silent on the issue of the provision of court documents and exhibits to persons not involved in the proceedings.
The leading cases in this jurisdiction concern the ordinary rule which is frequently referred to interchangeably as 'the principle of open justice': Re Bromfield; Ex parte West Australian Newspapers Ltd (1991) 6 WAR 153; Re Robins SM; Ex parte West Australian Newspapers Ltd (1999) 20 WAR 511; Re Her Honour Chief Judge Kennedy; Ex parte West Australian Newspapers Ltd [2006] WASCA 172. The consequences of appealing to the principle of open justice are twofold. First, the principle is frequently relied on as a sufficient premise for direct application to facts outside the scope of the general rule. Secondly, there is a tendency to identify the principle of open justice as the ultimate object, divorced from the rationale for its existence. That is an error.
The rationale for the ordinary rule and the principle of open justice on which it is based is that exposure of court proceedings to public scrutiny is essential for the maintenance of confidence in the integrity and independence of the courts: Russell v Russell, 520; Raybos Australia Pty Ltd v Jones [1985] 2 NSWLR 47, 61 (Samuels JA). That public interest generally prevails over the adverse personal consequences to litigants and those associated with them that can arise from the public nature of court processes and proceedings. For example, following widespread publicity given to the charges and trial in this case, there was a dramatic fall in enrolments at the childcare centre at which the alleged assaults occurred and at another centre run by the same owners, forcing the closure of the former and the sale of the latter. The childcare centre staff were verbally abused and damage was done to the premises. The physical and emotional health of one of the owners was detrimentally affected. There can be no doubt that the paramountcy of the public interest in the public conduct of court proceedings can result in very significant collateral damage to litigants, victims and those associated with them. However, such considerations are relevant and can in limited circumstances justify a departure from the ordinary rule relating to court proceedings. The exceptions to the ordinary rule are based on the balancing of competing public interests. It is not without significance that one uncontroversial and frequently applied exception to the ordinary rule relating to the core activity of court proceedings is the protection of confidential commercial information.
The weight to be given to the interests of participants in the court process will vary according to the nature of the proceedings, the nature and effect of the prohibition in question, its connection with the core activity of court proceedings and the extent to which the rationale for the principle of open justice is or may be adversely affected. In this case, the appellants were given a copy of the exhibit but in effect prevented from broadcasting it. The central question is whether the extension of the ordinary rule to cover unconditional use by the appellants of the exhibit played and tendered in court is required to enable or facilitate the public scrutiny essential to the maintenance of confidence in the integrity and independence of the courts.
I can now return to the issue of the 'correct test' under r 41. There is no warrant for adding to or embellishing the statutory language. The expression 'as is just' simply requires that regard be had to all relevant circumstances, both factual and legal. That was precisely the approach taken by the magistrate. Ground 2 is without merit.
Ground 3 - irrelevant considerations
This ground challenges the approach taken by the primary judge to the appellants' claim that the magistrate 'erred in finding that the following considerations arose and were relevant, further or alternatively by placing excessive weight on the following considerations'. Those considerations included the protection of the privacy of the children, the effect of the re‑agitation of the proceeding on the accused and the parents, the impact publication might have on the former owners of the childcare centre and the prospect that publication might deter others from bringing concerns to the attention of relevant authorities.
This rolled up ground conflates reviewable and non‑reviewable errors. Placing excessive weight on a relevant consideration does not itself give rise to an arguable jurisdictional error. Neither does the adequacy of the foundation for the findings and inferences. Moreover, the primary judge was correct to observe that the appellants faced a very difficult task in establishing that any of the considerations were irrelevant. I would go further and positively characterise them as relevant factors or considerations. The protection of the privacy of the victims of crime is a relevant consideration by virtue of the Victims of Crime Act. Further, the law recognises that the involvement of a child in litigation must be handled with particular sensitivity and care: see Evidence Act 1906 (WA), ss 106A ‑ 106T. Indeed, s 106MB of the Evidence Act prohibits the broadcast of a visual recording of evidence except with the approval of the Supreme Court. Assuming, without deciding, that this section does not apply to the videotape, it recognises that the broadcast of the evidence of children may not be in their best interests. Moreover, the law generally prohibits the identification of child offenders: Children's Court of Western Australia Act 1988, s 35.
Finally, even if the magistrate had taken into account an irrelevant consideration, the error would not be material in view of her conclusion that any experienced journalist should be well able to explain how it was that the legs were tied and thus adequately assist the public to understand how it was that the court concluded that the children were assaulted. The magistrate was clearly in the best position to make that assessment. It is not undermined by the hearsay evidence relied on in this appeal. This finding goes to the very rationale of the principle of open justice.
Ground 3 is without merit.
Grounds 4 and 5 - application of the wrong test/misapplication of the test (s 171)
The appellants' contention as to the correct test under s 171 of the Criminal Procedure Act mirrors that for r 41. It is to the effect that the magistrate may make an order under s 171(4)(c) if he or she is satisfied it is in the interests of justice to do so in accordance with the law, in particular the principle of open justice which requires that any departure from open justice be both exceptional and as narrow as reasonably necessary. The appellants accept that the power under s 171 can be exercised after the conclusion of the relevant court proceedings.
The non‑identification order is directly connected with court proceedings. Section 171 replaces the common law although the section would be construed against that background. However, in a departure from the common law, s 171(4) expressly singles out one specific subject, the identification of a victim of an offence, as a potential exception to the general rule in s 171(2) that all proceedings be in open courts. That is an unequivocal indication that it can be in the in the interests of justice to protect the identities of victims of crime. This is consistent with the policy reflected in the Victims of Crime Act. Courts in this jurisdiction routinely protect the identity of victims of sexual offences. Moreover, there is a similar strong public interest in protecting the identity of children who are victims of crime. It was clearly open to the magistrate to conclude that the further publication of the identities of the very young victims in this case had the realistic potential to have a detrimental impact on them.
I would dismiss grounds 4 and 5.
Ground 6 - remit to District Court
After the primary judge had delivered his extempore reasons for dismissing the application, the appellants made an oral application under s 36(5) of the Magistrates Court Act for an order remitting the application to the District Court to be treated as an appeal.
Sections 36(5) of the Magistrates Court Act provides:
On an application made under subsection (1) in respect of an act, order or direction, the Supreme Court may ‑
(a)if it considers that an appeal lies under the Criminal Appeals Act 2004 in respect of the act, order or direction, order the application to be treated as if it were such an appeal and deal with the matter accordingly;
(b)if it considers that an appeal lies under the Magistrates Court (Civil Proceedings) Act2004 in respect of the act, order or direction, order the application to be treated as if it were such an appeal and remit the matter to the District Court to be dealt with accordingly.
The primary judge declined to deal with the oral application, of which he had no notice, observing that there was nothing in his reasons to prevent the appellants from exercising any right of appeal they might have. I will assume that the oral application (which was in effect an application to amend the originating motion) was made before the primary judge formally pronounced the order dismissing the application.
The purpose of s 36(5)(b) is to enable the court to remit a matter if the existence of a right of appeal is, or may be regarded by the court as, an impediment to the grant of a review order or if an appeal is otherwise a preferable alternative course. The purpose of s 36(5)(b) is not to provide an unsuccessful applicant with a fallback position after a review application has been refused on its merits. Having determined the application for review orders, the primary judge was under no obligation to hear and determine the appellants' application under s 36(5)(b). I would dismiss ground 5.
The appellants have not satisfied the test for the grant of leave to appeal. The application for leave to appeal should be dismissed.
OWEN JA: I have seen the reasons that McLure P proposes to publish. I agree with her Honour's conclusion that leave to appeal should be refused and with her reasons for arriving at that result.
I wish to associate myself particularly with her Honour's remarks about the importance of bearing in mind the underlying rationale for the principle of open justice. It is worth repeating what was said in Raybos Australia Pty Ltd v Jones[1985] 2 NSWLR 47 in this regard. The case concerned an attempt to prohibit publication of the name of a solicitor‑defendant in contempt of court proceedings. Kirby P, at 50‑52, traced the history of the open administration of justice. His Honour cited dicta and writings of venerable antiquity stressing both private and public aspects of the principle. In relation to the former, publicity encourages attention by those involved in a case to the seriousness of the judicial process and thus promotes veracity of testimony. Matters of public interest or benefit include an educative effect leading to a greater respect for the law, increased appreciation of the methods of government and a confidence in judicial remedies. It also encourages judges to be faithful in the performance of their duties. Samuels JA summarised the public aspect of these notions at 61:
[T]he public conduct of the court's business is ordinarily deemed essential. The inquiry must start with the proposition, central to our notions of forensic procedure, that the courts customarily conduct their business in public in order that the integrity, fairness and efficiency of the system, and its administrators, may be maintained by its exposure to public scrutiny.
Free access to the courts by members of the public and by those who observe court proceedings in order to report them to a wider audience is a vital element of the system. Developments are occurring both in the way the media report cases and in access by members of the press to materials used in court proceedings. That is all as it should be. The principle of open justice reflects, protects and contributes to the fulfilment of this aspect of the public interest. But it would, in my view, be wrong to regard the principle of open justice as an end in itself. It is a means to an end; namely, to inform the public about the workings of the third arm of government and to ensure that courts and judges administer the justice system in a way that will maintain and foster its integrity, fairness and efficiency. Without in any way derogating from the proposition that exceptions to the principle of open justice are narrowly confined, each alleged infringement of the principle must be assessed according to its
own facts and on its own merits and against the background of the reasons for which the principle exists.
As McLure P has remarked, this involves a balancing of myriad factors. And the weight to be given to such factors will vary according to the nature and the prohibition in question, its connection with the core activities of court proceedings and the extent to which the underlying rationale for the open justice principle may be adversely affected.
The magistrate embarked on the exercise of balancing the competing factors. She decided that members of the media could view the videotape and report on it, but could not broadcast the vision or publish the names of the child victims without the consent of the children's parents. The primary judge refused an application to review the magistrate's decision. The task of this court is to discern reviewable or appealable error and to correct such errors as are found to exist. In my view, when the circumstances of this case are considered against the underlying rationale for the open justice principle, reviewable or appealable error has not been demonstrated.
MILLER JA: I have had the opportunity of reading in draft the reasons for judgment of McLure P and Owen JA. I agree with those reasons and I have nothing to add.
29
14
7