Strategic Management Australia AFL Pty Ltd v Precision Sports & Entertainment Group Pty Ltd
[2015] VSC 717
•15 December 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
LIST E
S CI 2014 5854
BETWEEN
| STRATEGIC MANAGEMENT AUSTRALIA AFL PTY LTD (ACN 146 799 162) | Plaintiff |
| and | |
| PRECISION SPORTS & ENTERTAINMENT GROUP PTY LTD (ACN 169 078 755) & ORS (According to the attached Schedule) | Defendant |
| AND BETWEEN | |
| LIAM MICHAEL PICKERING | Plaintiff by Counterclaim |
| STRATEGIC MANAGEMENT AUSTRALIA AFL PTY LTD (ACN 146 799162) & ANOR (According to the attached Schedule) | Defendants to Counterclaim |
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JUDGE: | SIFRIS J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 December 2015 |
DATE OF JUDGMENT: | 15 December 2015 |
CASE MAY BE CITED AS: | Strategic Management Australia AFL Pty Ltd & Anor v Precision Sports & Entertainment Group Pty Ltd & Anor |
MEDIUM NEUTRAL CITATION: | [2015] VSC 717 (First Revision: 9 November 2016) |
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PRACTICE AND PROCEDURE – Open justice principle – Exceptions – Privacy and Confidentiality – Countervailing considerations – Administration of Justice – Inherent jurisdiction of Court – Open Courts Act 2013.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr D H Denton QC with Mr A Denton | Altus Lawyers |
| For the Defendant | Mr M Osborne QC with Mr D F McAloon | B2B Lawyers |
| For the AFL Players Association (by leave) | Mr B Murphy | In house Counsel |
| For the Western Bulldogs (by leave) | Ms C Gobbo | Cornwall Stodart |
| For Channel 7 and Channel 9 and Herald & Weekly Times (by leave) | Mr J Quill | Macpherson Kelley |
HIS HONOUR:
Introduction
In this proceeding the plaintiff (SMAFL) claims that the second defendant, Liam Pickering (Pickering) and the third defendant, James Pitcher (Pitcher), as managing director and employee respectively of SMAFL, breached numerous duties to SMAFL.
It is alleged that Pickering and Pitcher set up their own company, the first defendant (Precision), in opposition to SMAFL, and took over the management of many AFL players, previously managed by SMAFL. It is alleged that Precision earned considerable commission as a direct result of conduct engaged in by Pickering and Pitcher while still employed by SMAFL, and to the obvious detriment of SMAFL. The precise claims and causes of action are not relevant for the purpose of this judgment. It is sufficient to say, that by failing to renew or procure the execution of player agency contracts, Pickering and Pitcher breached various duties owed to SMAFL to the detriment of SMAFL and for the benefit of Precision.[1] Pickering has commenced a counterclaim against SMAFL and its director Jason Sourasis (Sourasis) for misleading or deceptive conduct relating to Pickering joining SMAFL (the Counterclaim).
[1]Chillimia Pty Ltd, a company associated with Pickering remains a shareholder in SMAFL. In a related proceeding, which is being heard together with this proceeding, Chillirnia claims (amongst other things) that as a result of oppressive conduct, SMAFL should be wound up. This case involves intense scrutiny of the conduct of the parties and in this regard the Private Information as identified is not relevant (the Related case).
The resultant loss of commission to SMAFL is the basis of its case. To establish its claim, SMAFL needs to adduce evidence of the relevant players and their earnings or remuneration (whether from salary or endorsements) in order to assess its loss of commission. There is no objection by any party to the disclosure or publication of the names of the relevant player or the total amount of commission or loss and damage claimed by SMAFL. What is objected to by Precision, the AFL Players Association (AFLPA), and others,[2] is disclosure of the specific salary and endorsements of each relevant player (the Private Information). The objection is on the grounds of privacy and confidentiality. The players and clubs are not parties to the litigation.
[2]SMAFL joined in the application. The AFLPA and the Western Bulldogs appeared by leave and joined in the Application
It is unnecessary to traverse or rehearse any further background facts. The only question is whether the Private Information should be disclosed to the public and the media.
Relevant legal principles
It is not in doubt that this Court has inherent jurisdiction to control its procedures and processes. Until recently, that power was, in certain respects, regulated by ss 18 and 19 of the Supreme Court Act 1986 (Vic), but those provisions have been repealed and replaced by the Open Courts Act 2013 (Vic) (the Act). That Act does not limit or otherwise affect the court’s jurisdiction to make orders that restrict access to court documents, or restrict the way in which facts are referred to in open court. So much is clear from s 7(d) of the Act,[3] which provides that the Act does not limit or otherwise affect the making of an order or decision by a court or tribunal that —
(i)conceals the identify 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.
[3]RN v Commonwealth [2014] VSC 289 [13]; see also Australian Gift and Homewares Association Ltd v Melbourne Convention and Exhibition Trust (Ruling No 1 ) [2014) VSC 481. See also s 5(1) of the Act.
As properly conceded by Mr Quill, who appeared for a number of media organisations, and opposed the application, it matters not whether this application was made under the Act, which provides for the making of suppression orders if grounds are made out under s 18,[4] or the inherent jurisdiction of the Court to control the disclosure of or access to documents tendered in Court during the course of a hearing.
[4]Section 18(1)(a) provides: (1) A court or tribunal other than the Coroners Court may make a
The primary, basic or general rule is that there should be no restriction on reporting. This is enshrined by s 4 of the Act which establishes a presumption in favour of disclosure of information.[5] The administration of justice is underpinned by judicial hearings taking place in open court, publicly and in open view. Those that are unable to attend court should, through unrestricted reporting, be in no different a position to those who do attend court. Mr Quill put it in a very colourful way when he said that everything said in court should flow automatically through the door of the Court without restriction unless there are exceptional circumstances. He submitted, as is sufficiently clear from the authorities, that the bar is high.
[5]On the authorities it was also the common law position prior to the Act.
The next rule or principle is the qualification. As the cases demonstrate, there are clearly cases where the general rule requires modification in the interests of justice. The exceptions are few and varied and the categories of cases are of course not closed. A good example is restraining the publication of names. This may be necessary to protect the safety of litigants, or witnesses, or to protect children or others in sexual abuse cases.
Other than in exceptional cases (where the interests of justice require that there be a suppression order), it is well established that this principle of open justice can only be fulfilled if there is full and fair reporting of the proceedings by the media.
The classic Australian statement of the fundamental principle of open justice is to be found in Russell v Russell,[6] where Gibbs J said:
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’ (Scott v Scott [1913] AC 417 at 441). 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.[7]
[6](1976) 134 CLR 495.
[7]Ibid 520.
In Re Bromfield; Ex parte WA Newspapers Ltd,[8] the Full Court of the Supreme Court of Western Australia was required to determine whether WA Newspapers Ltd had standing to seek judicial review by way of a prerogative writ of a magistrate’s decision suppressing publication of proceedings. It was in this context that Malcolm CJ held:
The administration of justice is a matter of public interest. Not all members of the public are able to attend court proceedings. The public nature of judicial proceedings is facilitated by the publication of fair and accurate reports of proceedings in our courts. While the publication of ‘newsworthy’ reports of proceedings in the courts is no doubt conducive to the sale of newspapers, I accept the reports of court proceedings are generally published for the information of the public. It is in the interests of the administration of justice and in the public interest that the public be fairly and accurately informed of what takes place in our courts.[9]
[8](1991) 6 WAR 153.
[9]Ibid 164.
In the same case, Rowland J referred with approval to the following dictum by Lord Diplock in Attorney-General v Leveller Magazine Ltd:[10]
As a general rule the English system of administering justice does require that it be done in public: Scott v Scott. If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the court itself it requires that they should be held in open court to which the Press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this.[11]
[10][1979] AC 440.
[11]Ibid 449-50.
The Full Federal Court expressed very similar views in R v Davis[12] when overturning (the equivalent of) a suppression order. The court stated:
In Canberra as elsewhere, the media habitually report pre-trial proceedings, including evidence given in committal proceedings. Whatever their motives in reporting, their opportunity to do so arises out of a principle that is fundamental to our society and method of government: except in extraordinary circumstances, the courts of the land are open to the public. This principle arises out of the belief that exposure to public scrutiny is the surest safeguard against any risk of the courts abusing their considerable powers. As few members of the public have the time, or even the inclination, to attend courts in person, in a practical sense this principle demands that the media be free to report what goes on in them.[13]
[12][1995] FCA 1321; (1995) 57 FCR 512.
[13]Ibid 514.
In Australian Competition & Consumer Commission (ACCC) v ABE Transmission & Distribution Ltd (No 3)[14] Finkelstein J held that:
[T]he proper approach is that access should be allowed unless the interests of justice require a different course. It is only by adopting this approach that, in a practical sense, the principle of open justice will be preserved. Put differently, in my view there is a strong presumption in favour of allowing any member of the public who wishes to do so to inspect any document or thing that is put into evidence. Inspection should only be refused in exceptional circumstances.[15]
[14][2002] FCA 609.
[15]Ibid [7].
Similarly, in Seven Network Ltd v News Ltd (No 9),[16] Sackville J stated:
[I]t seems to me that unless the interests of justice require otherwise, this Court would ordinarily take the view that a non-party should have access to all non-confidential documents and other material admitted into evidence. … a convenient touchstone for determining the question of access by non-parties is whether the documents or other material have been admitted into evidence. In general, the application of this principle will serve the interests of open justice. In particular, access to the documentary evidence can be expected to be helpful to a person seeking to understand or explain the proceedings, or to evaluate the court’s determination of the issues arising in the proceedings.
[16][2005] FCA 1394 [27].
In ASIC v Rich,[17] Austin J referred specifically to the considerations that arise when the application comes from a media organisation:
[23]Of course, free access by the media to the contents of a court file is not, in absolute terms, a proposition flowing from the principle of open justice. There must be some limits to the extent to which any non-party is entitled to have access to material, especially where the material has not been the subject of evidence in open court. In eisa Ltd v Brady [2000] NSWSC 929; BC200005827 Santow J recognised the fundamental importance of the principle of open justice which, he said, entailed that justice must be visible and its processes transparent: at [16]. However, he acknowledged that the application of the principle in cases where specific material is sought from the court file involves an exercise of balancing the fundamental principle against other principles of justice which are there to protect the interests of parties to litigation. He summarised the problem in this way (at [36]):
Thus adopting a single bright-line rule that access should always be allowed — or indeed never — in either case ignores that here there are genuinely competing principles to be weighed. There is open justice, its processes made as accessible as possible through a properly informed press reporting to the wider community and which seek to be contemporaneous. There is the need to avoid injustice and unfair prejudice in the trial from disclosure of serious and as yet untested or incompletely tested allegations, where prematurity of disclosure is at issue and where there is likely to be no redress in defamation, no matter how malicious and pleaded allegation. Neither principle has a prior ascendancy. Both are subordinated to the interests of justice in which the community is vitally concerned as well as the parties. These questions must therefore be tested, case by case, against that overriding purpose of the interests of justice.
[17][2001] NSWSC 496 [23].
However, in Fairfax Publications v Ryde Local Court,[18] the New South Wales Court of Appeal appears to have taken a more restrictive view on the extent to which the media should have access to materials used in court. Although the court held that ‘use in court will often be determinative when making a decision to give the media access to documents so deployed’, it also referred to an ‘underlying principle’ which determines ‘when a document has been put before the court in such a manner that it ought to be made public’.[19] The Court approved[20] that underlying principle in terms as stated by Byrne J in Smith v Harris:
[T]he policy which demands that the judicial process be open to public scrutiny does not demand that the subject matter of that process be available except in so far as this is necessary for the public to scrutinise the process itself.[21]
[18][2005] NSWCA 101; (2005) 152 A Crim R 527 (per Spigelman CJ, Mason P and Beazley JA).
[19]Ibid [32].
[20]Ibid [69].
[21][1996] VicRp 70; [1996] 2 VR 335, 350.
It is convenient to refer to the succinct distillation of principle by J Forrest J in ABC v D1:[22]
First, that the principal rule is that judicial hearings should take place in open court: publicly and in open view, with no restriction on reporting. This is a fundamental precept underpinning the administration of justice.
Second, that in certain circumstances the administration of justice requires a qualification of the general rule. There will be circumstances where [23]modifications of the general rule are necessarily made to ensure that the administration of justice is not frustrated. These exceptions are many and varied and cannot be prescriptively identified.[24]
[22][2007] VSC 480. This distillation of the applicable principles has been followed or cited by a number of judges of the trial division of this Court.
[23]Ibid [46].
[24]Ibid [65] - [66].
In Broad Construction Services (WA) Pty Ltd v The Construction, Forestry, Mining and Energy Union,[25] Le Miere J held:
In general, the Court should favour allowing any member of the public who wishes to do so to inspect any document or thing that is put into evidence, whether in the course of a trial or an interlocutory hearing. There may be reasons for refusing to exercise the court’s discretion in favour of access but in the absence of any good reason to refuse access the principle of open justice favours access.
[25][2007] WASC 133.
In Re Hogan; ex parte Channel Seven Perth Pty Ltd[26] Blaxwell J after referring to the above authorities said —
[26][2008] WASC 113.
[21] Consistent with these principles of open justice, any member of the public has an unrestrained common law right of access to court documents of a ‘public’ nature such as orders or judgments (Titelius [96]-[101]). There is no such general right in respect of other documents used in open court unless the person seeking access has a proprietary interest in the document or needs to use it as evidence in other legal proceedings (Titelius [82] - [85]). However, upon request, a court has inherent power to make available materials which have been admitted into evidence (Broad Construction Services [16]), and most courts have rules which provide for a discretionary grant of leave in respect of such requests.
…
[28]It is also necessary to emphasis [sic] that the principles of open justice focus on the conditions necessary for the proper operation of the justice system and not on the creation of rights of access to documents used in court. In Fairfax Publications, Spigelman CJ stated:
Neither the claimants, nor the public at large, have a right of access to court documents. The ‘principle of open justice’ is a principle, it is not a freestanding right. It does not create some form of Freedom of Information Act applicable to courts. As a principle, it is of significance in guiding the court in determining a range of matters including, relevantly, when an application for access should be granted pursuant to an express or implied power to grant access. However, it remains a principle and not a right. [29]
[29]Although the media does not have a ‘right’ of access to documents used in proceedings, I nevertheless consider that it has an ‘interest’ in doing so if that is necessary in order for the public to be fully informed of what transpired in court. In this regard, the media’s interest in accessing a particular document is entirely commensurate with the extent to which the public need to be aware of the contents if they are to be able to properly scrutinise the proceedings.
Consideration and Analysis
The authorities are not in dispute. Any incursion into the fundamental principle of open justice (full and unrestricted reporting) must be clearly warranted. Although the categories of cases that constitute an exception to the basic fundamental rule are not closed they are, as indeed they must be, and as the authorities demonstrate, exceptional. Confidentiality and privacy has been recognised as a legitimate exception in particular circumstances. Despite the forceful and able argument of Mr Quill to the contrary, this case falls within this exception.
Although Mr Quill cautioned against this approach, I do consider that in this case ultimately, and perhaps inevitably, it is a question of balancing the interests of the parties; The players and clubs (and their institutions and associations) on the one hand, insisting as they do by contract on confidentiality, and the administration of justice, by thorough, full, and unrestricted reporting, on the other hand. Of course, the interests need not be, and indeed are not in this case, incompatible.
The identified privacy and confidentiality exception requires further factual and legal analysis in order to assess why in this case it indeed affords a legitimate and proper exception to the fundamental rule or principle. The facts are not in dispute. There is a tight and comprehensive regime of confidentiality in relation to player contracts and endorsements. This is at all levels. In a helpful submission Mr Murphy, who appeared for the AFL Players Association, explained the confidentiality regime and its purpose. He resisted disclosure of the Private Information. Even within the AFL, for reasons that were explained (and which I accept) there is very limited access to player contracts. In short, that the relevant information is private, confidential and to a sufficient extent commercially sensitive, cannot be disputed.
The Standard Player Agent Agreement requires an agent to maintain the confidentiality of the players salary and other entitlements (Clause 13). Clause 4.1(d) obliges the agent to ‘abide by the terms of the Regulations and Code of Conduct made under such Regulations’. Every agent (an agent must be accredited by the AFLPA) is bound by the AFLPA Regulations Governing Accredited Agents. Clause 3 of the Code of Conduct obliges the agent to maintain confidentiality. Finally clause 13 of the Standard Player Contract obliges the club and the player to maintain confidentiality.
In addition to the contract based confidentiality regime, which by its nature and intent, creates a legitimate expectation by stakeholders in the industry, and in particular those parties bound by contract to preserve confidentiality, there are three further relevant factual matters. First, none of the players, clubs or coaches are parties to the proceeding. Secondly, the parties to the proceeding have themselves conducted the case with some care in order to prevent disclosure of the Private Information. These are not insignificant matters. They directly touch and concern the inevitable balancing exercise. Thirdly, disclosure of the Private Information of only some of the players would be most unfair to them.
In Australian Broad casting Commission v Parish & Ors[27] Deane J (as his Honour then was) said —
The elements in the administration of justice which are involved on the side of a litigant seeking an order for confidentiality are the public interest in preserving the privacy of confidential arrangements so far as practicable and the public interest in the court’s doing justice between the parties, which will be hampered if the very proceedings in which the agreement is under challenge require the efficacy and value of the agreement to be seriously damaged, if not destroyed, before the result of the proceedings is determined. It appears to me that the learned trial judge has not identified this public interest correctly.
On the other side, is the principle of open justice. In according weight to this principle, the learned trial judge appears to me to have accorded to it almost the weight it would have if there were to be a very substantial, if not a complete derogation from it. In such a case, it would, of course, have immense weight.
Although the principle of open justice is of great importance in exercising the discretion under s 50, it is not necessarily the whole weight of that principle which must be placed in the scales. The derogation from the principle, which is involved in making any order under s 50, may be very great; or it may not be great; it may be very small. In placing that principle in the scales, the degree of derogation involved in the proposed order is an important matter to be considered.
…
Secondly, I have difficulty with his Honour’s conclusion that the public would be prevented from having a proper picture of the litigation. Later his Honour said: “Though the loss of confidentiality will be a serious matter for the respondents, it would be a graver matter to shut out the public from an adequate appreciation of the foundations upon which the case is to be decided.”
The question which troubles me here is whether the public would be denied “an adequate appreciation of the foundations on which the case is to be decided”.[28]
[27](1980) 29 ALR 228.
[28]Ibid 336-37.
In John Fairfax Publications Pty Ltd & Ors v Ryde Local Court & Ors[29] Spigelman CJ said —
“[59]Although the law has been particularly protective of persons from intrusion on the part of the organs of government, it should be no less protective in the case of other powerful sections of society of which, in contemporary conditions, the mass media is one. Indeed, as long ago as 1883 Sir James Martin, Chief Justice of this Court - himself a former editor of the original Australian newspaper and a former Premier -said, in the context of a defamation action (Anderson v Fairfax (1883) 4 NSWR 183 at 216-217):
‘... the freedom of the press is valuable, but there is a limit beyond which it is necessary for the sake of the public interests, that this power of examination and comment should not be allowed to go. There are various kinds of tyrannies, but there is no tyranny which would be more disastrous or intolerable than the tyranny of an unbridled press over which there was no control.’
[61]The media have considerable power in contemporary society. That power is enhanced by the capacity for intrusion afforded by contemporary technology. That power can be wielded for good or ill. To establish, for the first time, a wide ranging right to enter property to pursue the truth, let alone the quite different requirements of a “good story”, would be to trust those who wield power to a degree that centuries of experience with searches and seizures establishes to be unwise.”
[78]In my opinion, her Honour was entitled to give weight to the private rights of the Fourth Opponent in determining the application for access.
[29][2005] NSWCA 101.
In Australian Football League and Another v The Age Company Ltd & Ors,[30] Kellam J said —
[93]On the other hand, what is the public interest sought to be served by the publication of otherwise confidential material? The media is well aware of the terms of the IDP. I have no doubt that there is a public interest in discussion of the terms of the IDP. It may be that some would hold the view that the IDP is too lenient in relation to players who test positive. That debate can be had without the identification of players who have tested positive. It may be that some would regard the provision of confidentiality at all as being inappropriate. Any public interest in that debate can be had without the identification of any players who have tested positive. It may well be that there is a public interest in discussion of the manner in which the policy distinguishes between cannabinoids and other drugs. That is a debate which can be had in the absence of the knowledge of the identity of any player who has tested positive. The non-naming of the players who have tested positive does not in any legitimate way derogate from proper public discussion of these issues.
[94]In the end result, it appears to me that there is nothing other than the satisfaction of public curiosity in having the confidentiality of the names of those who have tested positive breached by being released. It may well be a wonderful front page story for the newspapers and a scoop for other sections of the media. No doubt photographs of any players concerned will be published and the issue will be productive of many words of journalistic endeavour. However, I can see nothing that is in the public welfare or in the interests of the community at large which can be served by the identification, and perhaps to a degree the vilification and shaming of those who agreed to be tested randomly pursuant to the terms of the IDP, on the basis that such testing would remain confidential until such time as there were to be three positive tests. Accordingly, even if there is a public interest defence to the claim of confidentiality made by the plaintiffs I do not conclude that it outweighs the public interest in having the information remain confidential.
[95]Accordingly, I am satisfied that the plaintiffs have made out their case in each of the proceedings before me that there should be permanent injunctions in each set of proceedings restraining the defendants from publishing or otherwise disseminating any material tending to identify any AFL player who has tested positive on one or two occasions under the AFL IDP. In addition, it follows that there should be a declaration made to the effect that the identity of any AFL player who has tested positive under the AFL IDP on one or two occasions is confidential. However, both Mr Marks and Mr Houghton of senior counsel who appears for the AFL stated to me in the course of the proceeding that submissions may follow as to the terms of such proposed injunctions once the issues have been determined. Accordingly, I will give the parties an opportunity to consider this judgment before hearing submissions on those matters and on the matter of costs.
[30](2006) 15 VR 419.
I have carefully considered the fundamental principle of open justice and the countervailing public interest and administration of justice considerations identified by the Applicants. I propose to accede to the Applicants’ request. The Private Information will not be made available to the media or the public. The Private Information is personal, private and confidential, and in the peculiar and specific circumstances of this case, privacy and confidentiality constitutes a legitimate exception to the general rule. The specific information comprising the Private Information is very limited and will not assist one jot in understanding the issues in the case (and the Counterclaim and the Related case), the evidence and factual matters in dispute. Put another way, if the Private Information was disclosed it would add very little, if anything, to a full and proper understanding of the case (and the Counterclaim and the Related case). It is readily understandable and has been fully reported. The intense, proper and entirely appropriate scrutiny by the media continues. Linking a monetary sum with a name adds nothing and is irrelevant to a proper understanding of the case (and the Counterclaim and the Related case), particularly in light of the fact that the total figure for damages is known.
In the final analysis, in my opinion, ‘the degree of derogation involved’ is very small indeed. It is difficult to identify what public interest is served — other than curiosity — in the publication of the Private Information. As pointed out, it would not prevent the public from having a full and proper picture of the litigation. The public will still have an adequate appreciation of the foundations of the case (and the Counterclaim and the Related case). They are able to properly scrutinise the proceedings, as indeed they have without this information.
Finally, and in summary, restricting the disclosure of the Private Information does not impinge on the jurisprudential basis which underpins the principle of open justice. As stated, the ability to comprehend the case and evaluate the court’s decision and conduct is not compromised. Full scrutiny to detect any abuse of power, arbitrariness, or idiosyncratic behaviour, is not affected. Accordingly, preserving the confidentiality of the Private Information is, in my opinion, in the public interest for the reasons given.
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;
4