The Herald & Weekly Times Ltd v Director of Public Prosecutions and Vlassakis No. Sccrm-03-33

HERALD AND WEEKLY TIMES LTD V DIRECTOR OF PUBLIC PROSECUTIONS AND VLASSAKIS
[2003] SASC 234
Full Court: Lander, Bleby and Besanko JJ

LANDER J: This is an appeal, or in the alternative an application for leave to appeal, by The Herald and Weekly Times Ltd (HWTL) against suppression orders made by a Judge of this Court on 21 June 2001 in the course of a criminal trial in this Court.
HWTL publishes the Herald Sun newspaper which has a wide circulation in Victoria but a very limited circulation in this State.
Because of the grounds of appeal and the submissions it is necessary to set out the orders sought in the Court below, the submissions made by various parties and the way in which the hearings at which the orders were made were conducted as well as the hearings following the making of the orders.
The circumstances giving rise to the orders
Originally the second respondent to this application was charged together with three other men with multiple counts of murder. However he was arraigned in this Court on a separate ex officio information and pleaded guilty to four counts of murder. After his arraignment and plea he was sentenced to life imprisonment. Thereupon his counsel said:
“I have an application to make. I have some written submissions in respect of that application. I ask that your Honour receive that. That is with the consent of my learned friend.”
The prosecutor then indicated her consent to that course. A two page document was handed to the Judge.
A solicitor, Ms D’Arcy, said:
“If you are considering suppression orders, I appear on behalf of The Advertiser, The Australian and the ABC.”
Another solicitor (Mr Campbell) announced his appearance on behalf of Channels 7, 9 and 10.
HWTL was not represented at this hearing. There is nothing to suggest that it had any notice of the hearing. The objective evidence suggests that it did not have notice of the second respondent’s application. Therefore I do not think HWTL can be criticised for not being present at this hearing of the application.
The second respondent’s counsel advised the Court that the Crown agreed with the factual matters contained in the document which she had handed the Judge and said:
“The order that we seek - and I say it - is an order suppressing publication of the image of Mr Vlassakis in any form, including photographs, sketches, illustrations and descriptions of his appearance. The ground for that application is to prevent prejudice to the proper administration of justice, for the reasons outlined in the document handed to your Honour.”
Ms D’Arcy advised His Honour that she had not had the opportunity to see the document and in response to a question from His Honour said that her instructions were to oppose the application.
She said that the application was opposed because there could not be any prejudice to the proper administration of justice necessitating the orders sought because Mr Vlassakis had by then pleaded guilty to the charges. His sentence could not be affected if his image was published.
Mr Campbell supported that submission and in opposition to the orders sought said:
“If it is in relation to Mr Vlassakis, as my friend says, that couldn’t possibly now continue as an issue. If it is something else, then obviously, we need to be told what it is, so that we can address your Honour.”
The Judge then said:
“Occasionally, there are circumstances in which it is inappropriate to identify the reasons and I think this is probably one of those occasions. They are a rarity, but it does happen.”
During further submissions it became plain that Ms D’Arcy and Mr Campbell were at a disadvantage in putting any submissions to His Honour in relation to Mr Vlassakis’s counsel’s application.
Ms D’Arcy said that she was at a disadvantage without knowing the precise grounds upon which the application was made but that she would make whatever submissions she could.
His Honour said:
“I certainly am not going to cut you short. In the particular circumstances of this matter, I am not prepared to identify the particular concerns that have been expressed in these written submissions in support of the application and in support of the proposition that it is in the interests of the administration of justice that there be suppression of the image of Mr Vlassakis. To do so would be to defeat the purposes. Now, that does place you at a disadvantage; I recognise that.
I will make the order - if I am going to make it - only for a limited period. As it stands at the moment, it would defeat the administration of justice for those purposes if I was to disclose the grounds on which it is made. Now, that places you at quite a severe disadvantage; I acknowledge that. It is an unusual situation. I am sorry, I don’t see any way round it.”
In response to a question as to whether the Judge would be prepared to indicate the particular part of the administration of justice which might be prejudiced, His Honour said that he was unable to do that, and that in this case it would be inappropriate.
After some further exchanges, His Honour said:
“Bearing in mind, in this particular matter, there is no suppression on the name of Mr Vlassakis - it is merely any pictorial image of him - I am satisfied, for the reasons that have been put forward that, at the moment, it is in the interests of the administration of justice to make the order; in fact to put it around the other way, in terms of section 69A that the order ‘should be made to prevent prejudice to the proper administration of justice....’
In those circumstances, I make an order suppressing publication of the image of Mr Vlassakis in any form, including photographs, sketches, illustrations.
Further there will be an order suppressing publication of any description of Mr Vlassakis - that is, of his appearance - which would have the capacity to lead to identification of him by a reader of the description.
Those orders will remain in force until further order, but I indicate that it will be my intention to review the orders on the next appearance of Mr Vlassakis in this Court.”
His Honour then ordered that the two page written submissions be sealed in an envelope, placed in the Court file and not be opened without an order of a Judge of this Court.
A further application was made on 27 June 2001. By that time Mr Vlassakis had been incarcerated in Mobilong prison. His counsel made an application for a further suppression order as a result of industrial action taken at that prison by Correctional Services Officers.
She sought an order suppressing details of the movement and transport arrangements of the second respondent, and the details of where he was presently incarcerated, until further order.
During submissions, both Mr Vlassakis’s counsel and the prosecutor advised the Court that there was a possibility that Mr Vlassakis would give evidence in the trial of the other persons charged with the murders to which he had pleaded guilty and other counts of murder.
His counsel also indicated that concerns were held for Mr Vlassakis’s safety and for his security.
On this occasion Advertiser Newspapers Ltd was represented by a solicitor, Mr Short. He opposed any further suppression orders. Immediately before Mr Short made his submissions His Honour said:
“Mr Short, ordinarily the mere fact that someone has been convicted of crimes and might be considered at some risk within the prison system would not justify a suppression order, however the situation is that there is consideration being given to whether Mr Vlassakis will be a witness should the accused be committed for trial, that adds a different complexion, doesn’t it?”
The Advertiser’s solicitor addressed the Court and in doing so submitted that Mr Vlassakis should be treated no differently than any other prisoner.
In answer to that submission His Honour said:
“Only on the basis that at the moment he is a potential witness, and the proper administration of justice says that not only should they be protected, but that they should be put in a position where they can deal with the authorities in the knowledge that, if you like, everything is being done to protect them for the time being.”
Mr Short opposed any interim suppression order for much the same reasons as he opposed any permanent orders being made. Mr Campbell also appeared on this occasion, presumably for the same parties who he represented on the previous occasion. He also opposed any further suppression orders including any interim suppression order.
After they had completed their submissions Mr Vlassakis’s counsel again referred to the two page document which had been provided to His Honour on the previous occasion.
Eventually His Honour made the following order:
“Pursuant to s 69A(3), I make an interim suppression order which will have effect, subject to revocation by the Court, until the application is determined and that interim suppression order is that I suppress from publication any material concerning the whereabouts of Mr Vlassakis, that is, in which institution he is or will be held and of any movements of Mr Vlassakis outside any institution or between, which will include any movement between institutions.”
His Honour also made orders suppressing various submissions made by solicitors and counsel.
His Honour later made a further order:
“I exempt from that order reference to the possibility that up until now Mr Vlassakis has been held in Mobilong.”
No argument was advanced before the learned Judge as to the learned Judge’s jurisdiction to make the orders which he made.
The purpose of Division 1 of Part VIII of the Evidence Act 1929 (SA) (“the Evidence Act”), which deals with the publication of evidence, is to regulate the flow of information from a court. If a court believes that suppression orders should be made to prevent prejudice to the proper administration of justice or to prevent undue hardship to a victim, a witness or a child the court can make orders forbidding the publication of specified evidence or of an account or report of specified evidence or forbidding the publication of the name of those persons and any other material tending to identify those persons.
The Division has been enacted to provide a procedure whereby the Court can regulate the flow of information emanating from the Court and for the purpose of protecting the anonymity of those persons to whom I have referred. This Division has not been enacted to provide the Court with a jurisdiction to make orders preventing the media from publishing any facts or material which have come to the media’s attention outside the curial process. The Division is not intended to, nor does it invest the Court with some form of statutory jurisdiction to protect the safety of people in circumstances outside their curial attendances.
The orders which were sought on 27 June did not apparently relate to evidence or an account of evidence given in a court. Nor were they orders forbidding the publication of Mr Vlassakis’s name or of material tending to identify him. If there was jurisdiction to make these orders it does not appear to me that it was given by this Division of the Evidence Act.
In those circumstances, it seems to me, although it was not argued before the learned Judge, that the Judge did not have jurisdiction to make the orders which he did.
In any event, for the reasons which I am about to give in relation to the orders the subject of the appeal these orders, in my opinion, should not have been made.
In any event the matter resumed on the next day and counsel for the Director of Public Prosecutions, Ms Abraham QC, sought a permanent order for:
“Suppression of the whereabouts of Mr Vlassakis in any correctional facility within the State, any movement between those facilities or from one of those facilities to other parts of the State.”
The application was supported by Ms Davey, counsel for Mr Vlassakis, and opposed again by Mr Short. During his submissions he made reference to the two page document which he said was mentioned by Ms Abraham and Ms Davey but said that he was unaware of its contents.
His Honour said:
“Unfortunately for you at the moment I don’t think I should disclose what is in that document.”
Mr Short said:
“In relation to that document, again I would urge you upon a course which would enable Mr Campbell and myself to at least have some hope of fashioning an argument against it, whether that be by way of closing the Court in undertakings.”
His Honour said:
“I must say there is not much now in that document that adds to the material which you are already aware of. The situation has changed somewhat.”
In his reasons for the orders which he made on 28 June 2001 His Honour said:
“The Director of Public Prosecutions has indicated that the possibility of Mr Vlassakis being called as a witness for the Crown in proceedings against the three accused who are currently before the Magistrates Court is being considered. Investigations are required before a decision on that issue can be made. In those circumstances, the director made the application today. The possibility of Mr Vlassakis being a witness for the Crown increases the existing risk to his safety.
In my opinion, if those investigations were carried out, or had to be carried out, in the presence of the media, the investigations would be severely impeded and there would follow prejudice to the proper administration of justice. I have also reached the view that suppression as to the whereabouts of Mr Vlassakis would help prevent that prejudice.
...
The possibility that Mr Vlassakis might be a witness for the Crown also adds an additional basis for the operation of s69A of the Evidence Act. Sub-section (1)(b)(ii) provides that the court may make an order in order to prevent undue hardship to a potential witness. Given the circumstances in which Mr Vlassakis is now placed, I am satisfied that the ongoing glare of media attention and publicity, considered in the context of the situation that consideration is being given to whether Mr Vlassakis should be a witness, will create undue hardship.
I have reached the view that those matters provide sufficient basis for the exercise of the discretion. There is an added feature concerning the security of Mr Vlassakis that reinforces my view. While I accept that the authorities will make adequate arrangements for the safety of Mr Vlassakis, the fact that Mr Vlassakis will have dealings with the authorities over the next few weeks might well become known within the confines of a correctional facility. If it does become known, it will add to the risks that already exist. In the particular circumstances, in my view a suppression as to Mr Vlassakis’s whereabouts will also assist in preventing prejudice of the proper administration of justice and will assist in preventing undue hardship for the reason that it will impede the obtaining of knowledge by others within the system as to his whereabouts.
The suppression order I put in place does not apply to the remarks from this point on. It continues to be in existence, obviously, but the following remarks are not suppressed.
...
No submissions have been directed to my power to make the order. Section 69A empowers the court to make a ‘suppression order’ in the particular circumstances identified in that section. The expression ‘suppression order’ is defined in s68 and it includes an order forbidding publication of the name of a party or witness ‘and of any other material tending to identify any such person’. The name of Mr Vlassakis is not suppressed, but there is an order in force suppressing publication of any photograph or imagine (sic) of Mr Vlassakis.
In the particular circumstances of this matter, if the media were able to publicise the whereabouts of Mr Vlassakis within the correctional system, in my view publication of that information would tend to identify Mr Vlassakis. Similarly, publication of any movement outside the institution would have such a tendency. For these reasons, in my opinion I have the power to make the orders sought. As I mentioned, there has been no suggestion to the contrary.
I make an order suppressing from publication any material or information concerning the whereabouts of Mr Vlassakis in any correctional facility within the State of South Australia and of any material or information concerning any movement of Mr Vlassakis outside any such facility.”
During argument Mr Campbell said that the previous orders had been made upon grounds contained largely in a confidential memo. In answer to that submission His Honour said:
“Those matters have been disclosed in the course of latest submissions anyway. There is one aspect that hasn’t been, which I intend should remain confidential.”
His Honour made a further suppression order on this occasion suppressing any reference to the fact that Mr Vlassakis was being considered as a witness in the matter of R v Bunting & Ors until further order.
It is to be noted that that order shows that the suppression orders to which I have already referred were made in the matter of R v Vlassakis which was a criminal proceeding commenced on an ex officio information and on which information Mr Vlassakis was the sole accused.
The matter came on next on 18 October.
On that occasion Ms D’Arcy appeared and during the course of her submissions referred His Honour to the two page memorandum and sought access to that memorandum. The Judge refused that application whereupon Ms D’Arcy submitted that the media which she represented had a right to make submissions on an application for a suppression order and that the Judge, by refusing to allow her to know the basis of the application, was “in fact denying natural justice to my client”.
His Honour said that the basis upon which he intended to make the order was upon the ground of Mr Vlassakis’s security. He said that any other material in the document he did not regard as relevant.
During submissions counsel and the Judge referred to the possibility that Mr Vlassakis might suffer undue hardship.
Ms D’Arcy answered that by submitting that the proceedings that the Judge was hearing was the prosecution of Mr Vlassakis by the Crown. In those proceedings he was not a victim or a witness and therefore considerations of undue hardship did not arise.
Further debate ensued in which Ms Abraham QC and Ms Davey made submissions that His Honour had jurisdiction to make an order in these proceedings to prevent undue hardship to Mr Vlassakis.
Mr Campbell supported Ms D’Arcy’s submission that His Honour did not have jurisdiction to make a suppression order to prevent undue hardship to Mr Vlassakis but His Honour indicated, during argument, that he did not accept that submission.
In due course His Honour made an order dismissing the application “to lift or vary the order suppressing the publication of any image of Mr Vlassakis”.
In his reasons he said:
“In the particular matter under consideration, I am satisfied the publication of Mr Vlassakis’s image would cause undue hardship, and would, for that reason and for the reason of security, prejudice the proper administration of justice.
Weighing those matters against requirements of s 69A(2) I am satisfied that the suppression order should be made to prevent the undue hardship and to prevent prejudice to the proper administration of justice. When I say the order should be made that the existing order should continue to be in force until further order. If there is a trial, and if Mr Vlassakis does give evidence, the matter can be reviewed at the conclusion of his evidence if an application is made to lift the order.
As discussed with counsel, I consider I have the jurisdiction to make the order in the current proceedings. If it was necessary to do so I would make the order in the other proceedings of R v Bunting & Ors.
The application to lift or vary the orders suppressing the publication of any image of Mr Vlassakis is refused.”
The following orders were made:
“1The application for revocation/variation of the suppression order concerning the image of James Spyridon Vlassakis be refused.
2The image of the respondent James Spyridon Vlassakis in any form, including photographs, sketches and illustrations be suppressed from publication until further order.
3Any description of the appearance of James Spyridon Vlassakis which will have the capacity to lead to identification of him by a reader of the description be suppressed from publication until further order.
4A further application could be made at the conclusion of James Spyridon Vlassakis’s evidence.”
The reason for this appeal

On 11 July 2002, HWTL published an article in its newspaper which included a photograph of Mr Vlassakis.
On 12 July 2002, counsel on behalf of the applicant appeared before the trial judge and offered an apology for the publication of that photograph. After argument, the Judge directed the Registrar of the Court to issue an application against the applicant and two other publishers of newspapers, charging them with contempt. This Court has not been provided with the charge but I have assumed that the charge has been brought pursuant to s 70 of the Evidence Act.
When the matter was next called on, counsel for the applicant indicated that the applicant would be pleading not guilty to the charge of contempt and would be contending that the orders made by the trial judge, upon which the charge of contempt was based, were void.
The contempt charge was then listed before another judge of this Court and, after a hearing before that judge, the contempt proceedings were adjourned to allow counsel for the applicant to consider whether the applicant wished to appeal against the orders made by Martin J.
This appeal or application has been made in the light of those circumstances.
Mr Houghton QC, senior counsel for the HWTL, frankly conceded that this appeal/application would not have been brought if HWTL had not been charged with contempt.
These proceedings have been brought to obtain relief to assist HWTL in its defence to the contempt charges.
HWTL’s motivation is not relevant in a consideration of the merits of this appeal/application except perhaps in one respect. If these proceedings are out of time, and an extension of time is sought, HWTL’s reasons for its failure to bring the appropriate proceedings in time may be a relevant consideration for this Court exercising its discretion on such an application.
Originally HWTL applied ex parte to the Full Court pursuant to r 94.03 of the Supreme Court Rules 1987 (SA) for leave to appeal and an extension of time within which to appeal. Presumably HWTL believed that it required a leave to appeal and an extension of time for bringing the application for leave. Those applications were considered in private by the Full Court consisting of the Chief Justice, Bleby J and me.
On 20 December 2002, the Court published reasons and made orders referring the application into open court to be heard on notice. The orders made were:
(1)That the application be referred to the Full Court for consideration with any appeal or application for leave to appeal that the Herald and Weekly Times Limited might make under s 69A(8) or s 69A(9) of the Evidence Act.
(2)That the Herald and Weekly Times Limited be at liberty to make further application to this Court in relation to this application if so advised.
The applicant subsequently filed a “Notice For Specific Directions” pursuant to r 55.18 in the same proceedings. If such a Notice was appropriate it should be under r 55.06. In any event the Notice again seeks leave to appeal but it does not seek an extension of time.
That application first came before the Court as presently constituted on 6 February 2003. On that day it became apparent for the first time that the appellant’s primary argument was that leave to appeal was not necessary, although no notice of appeal had been filed. The application for leave was therefore adjourned for hearing in conjunction with the appellant’s primary argument and with the argument on the appeal itself.
Further directions were given, including a direction that the appellant file its notice of appeal within seven days if it wished to pursue its primary argument. The notice of appeal was filed on 7 February 2003. There was no separate application for an extension of time in which to institute the appeal.
In the Court’s reasons, which led to the referral of the application to the Court in open court, the Court noticed that the application for leave to appeal had been brought in the civil jurisdiction and that it relied upon the Supreme Court Rules 1987 (SA) (the Civil Rules), which are the Rules governing the practice and procedure in the civil jurisdiction of this Court. The Court doubted that it was appropriate to make an application relying upon the Civil Rules but referred the matter into open Court for argument. However this Court has had the benefit of extensive argument on the procedural aspects of this appeal/application and the substantive merits of the appeal which was not available to the Full Court which considered the application for leave in private. On this hearing not only was HWTL represented but the Solicitor General appeared on behalf of the Director of Public Prosecutions (DPP) and Ms Davey appeared on behalf of Mr Vlassakis.
Section 69A of the Evidence Act
Section 69A of the Evidence Act empowers a Court to make a suppression order either to prevent prejudice to the proper administration of justice or to prevent undue hardship to an alleged victim of crime or to a witness or potential witness in civil or criminal proceedings, who is not a party to those proceedings, or to a child: s 69A Evidence Act. The relevant subsections of that section provide:
“69A(1) Where a court is satisfied that a suppression order should be made -
(a)to prevent prejudice to the proper administration of justice; or
(b)to prevent undue hardship -
(i)to an alleged victim of crime; or
(ii)to a witness or potential witness in civil or criminal proceedings who is not a party to those proceedings; or
(iii)to a child,
the court may, subject to this section, make such an order.
(2)Where the question of making a suppression order (other than an interim suppression order) is under consideration by a court -
(a)the public interest in publication of information related to court proceedings, and the consequential right of the news media to publish such information, must be recognized as considerations of substantial weight; and
(b)the court may only make the order if satisfied that the prejudice to the proper administration of justice, or the undue hardship, that would occur if the order were not made should be accorded greater weight than the considerations referred to above.
(3)...
(4)A suppression order may be made subject to such exceptions and conditions as the court thinks fit and specifies in the order.
(5)Where an application is made to a court for a suppression order -
(a) any of the following persons, namely:
(i)the applicant for the suppression order;
(ii)a party to the proceedings in which the suppression order is sought.
(iii)a representative of a newspaper or a radio or television station;
(iv)any person who has, in the opinion of the court, a proper interest in the question of whether a suppression order should be made,
is entitled to make submissions to the court on the application and may, by leave of the court, call or give evidence in support of those submissions;
(b)the court may (but is not obliged to) delay determining the application to make possible or facilitate non-party intervention in the proceedings under paragraph (a)(iii) or (iv).
(6)A suppression order may be varied or revoked by the court by which it was made, on the application of any of the persons entitled to make submissions by virtue of subsection (5)(a).
(7)...
(8)An appeal lies against -
(a)a suppression order or a decision by a court not to make a suppression order;
(b)the variation or revocation of a suppression order or a decision by a court not to vary or revoke a suppression order.
(9)Any of the following persons is entitled to institute, or to be heard on, an appeal:
(a)where an application for a suppression order was made to the primary court - the applicant;
(b)a party to the proceedings in which the order or decision subject to appeal was made;
(c)a representative of a newspaper or a radio or television station;
(d)a person who had, in the opinion of primary court, a proper interest in the question of whether a suppression order should be made; or
(e)a person who did not appear before the primary court but has, in the opinion of the appellate court, a proper interest in the subject matter of the appeal or proposed appeal,
but a person who did not appear before the primary court may only bring an appeal, or be heard on an appeal, by leave of the appellate court (which will be granted if the appellate court is satisfied that that person’s failure to appear before the primary court is not attributable to a lack of proper diligence).
(10)...
(11)...
(12)The Registrar will establish and maintain a register of all suppression orders (other than interim suppression orders).
(13)The register will be made available for inspection by members of the public free of charge during ordinary office hours.
(14)...”
The orders, the subject of this application, were made by the trial judge in HWTL’s absence.
A suppression order is defined in s 68 of the Evidence Act in the following terms:
“Suppression order means an order -
(a)forbidding the publication of specified evidence or of any account or report of specified evidence; or
(b)forbidding the publication of the name of -
(i)a party or witness; or
(ii)a person alluded to in the course of proceedings before the court,
and of any other material tending to identify any such person.”
The history of this legislation
In Scott v Scott [1913] AC 417 the petitioner for nullity of a marriage in the Probate, Divorce and Admiralty Division of the High Court sought an order that the proceedings be heard in camera, and an order was accordingly made. The petition was undefended and a decree nisi was pronounced. The petitioner sent a copy of the transcript of the hearing of the nullity proceedings to three people in answer to a claim by her former husband that she was insane.
The former husband moved the court for the petitioner to be punished for contempt. She was found guilty of contempt and ordered to pay the costs. She appealed.
The House of Lords decided that subject to some specific exceptions, which are unimportant in a consideration of this case, the courts in England should administer justice in public. Essentially the exceptions arose only where it was necessary to exclude the public because the administration of justice would be rendered impracticable. In particular, however, Earl Loreburn said that a court cannot be closed in the interests of public decency. [at 447]
Their Lordships considered that the order for a hearing in camera should not have been made. They set aside the contempt finding because, even assuming the order could have been made, an order of that kind did not prevent the subsequent publication of the proceedings.
That decision gave rise to the enactment in this State of the Evidence Publication Act 1917 (SA). Section 3 of that Act provided that where it appeared that the publication of evidence would be likely to offend against public decency or it was otherwise desirable in the interests of the administration of justice to prohibit the name of any party or a witness the court could forbid the publication of the evidence of the name of the party or witness.
The Act provided that any person who disobeyed an order would be guilty of contempt.
These sections of that Act were incorporated as Part VIII of the Evidence Act (ss 68-72) with some amendments which are immaterial. The empowering section became s 69.
There was no provision to appeal against orders of this kind prior to 1979.
Section 69 was repealed and re-enacted by s 12 of the Evidence Act Amendment Act 1979 (SA). Although not called ‘suppression orders’ in that legislation, the orders which could be made were not relevantly different from the orders now defined in s 68 of the Evidence Act. Section 69 then empowered a court to make a suppression order if the court thought it was desirable to exercise the powers conferred by the section in the interests of the administration of justice or in order to prevent undue prejudice or undue hardship to any person.
Section 69(4) provided for an appeal to lie against a decision of the court to make or not to make an order under the section. No right of appeal was given to the media or any representatives of the media.
In 1984 the Evidence Act Amendment Act 1984 (SA) amended s 68 in Division I, and repealed and re-enacted s 69, 70 and 71 as Division 2 of Part VIII of the Evidence Act.
A new s 69A replaced s 69. It allowed the court to make suppression orders (not relevantly different from the present definition) where a court considered it was desirable in the interests of the administration of justice or in order to prevent hardship or embarrassment to any person.
The 1984 amending Act allowed a representative of a newspaper or a radio or television station or any person who satisfied the court that he had a proper interest to appear on any application.
An appeal lay against, not only the making or refusal to make a suppression order, but also the variation or revocation of such an order: s 69A(5).
Section 69A(6) provided for the class of persons who were entitled to institute or be heard on any appeal:
“(6)Any of the following persons is entitled to institute, or to be heard upon, an appeal under subsection (5):
(a)where an application for a suppression order was made to the primary court - the applicant;
(b)a party to the proceedings in which the order or decision subject to appeal was made;
(c)a representative of a newspaper or a radio or television station, who -
(i)appeared before the primary court;
or
(ii)did not appear before the primary court but satisfies the appellate court that his non-appearance before the primary court is not attributable to any lack of proper diligence on his part;
(d)a person who satisfied the primary court that he had a proper interest in the question of whether a suppression order should be made;
or
(e)a person who did not appear before the primary court but satisfies the appellate court -
(i)that he has a proper interest in the subject matter of the appeal or proposed appeal;
and
(ii)that his non-appearance before the primary court is not attributable to any lack of proper diligence on his part.”
Parliament recognised, for the first time, the media’s interest in orders of this kind. It not only provided a right of audience to the media on the application but also an entitlement to institute or be heard on any appeal.
However it is important to notice in s 69A(6) that a representative of a newspaper or radio or television station only had a right to institute or be heard on appeal if that representative had appeared before the primary court, or if that representative had not appeared before the primary court, if the representative could satisfy the appellate court that his non-appearance before the primary court was not attributable to any lack of proper diligence on his part.
It is clear, beyond doubt, that it was only the persons in s 69A, (c) and (e) who had to satisfy the appellate court of the threshold test if they had not appeared before the primary court that their failure to appear before the primary court was not due to a lack of diligence.
The present s 69A was introduced into the Evidence Act by the Evidence Act Amendment Act 1989 (SA).
In his second reading speech the then Attorney-General, the Hon C J Sumner said:
“In recent times there has been increasing media and public interest in, and concern regarding, the powers of the Court to suppress certain materials before them. It should be noticed that, since 1984, the actual numbers of suppression orders have been remarkably consistent and there is no evidence to suggest that their volume will, or is likely to increase markedly. ... However, of primary concern to the Government has been the quality of some suppression orders made by the courts and the basis upon which they have been made. For example, there has been an incidence of a court not only suppressing oral evidence, including the name of a defendant, before it but also suppressing the very reasons for the making of the suppression order itself. To the Government this is quite unacceptable and inconsistent with the notions of open justice, and this appeal seeks to overcome these types of problems.”
As I have already observed the definition of ‘suppression order’ is not materially or relevantly different from the orders which a court could make under the 1979 Act or the 1984 Act.
For the first time the Registrar is required to keep a register of all suppression orders: s 69A(12). That register is available for inspection by members of the public: s 69A(13). Clearly enough the intention is to make the fact of suppression orders widely available, no doubt to assist the media in performing its functions.
Section 69A in its present form deletes reference to the Court considering it desirable to make an order. It recasts the grounds upon which a suppression order can be made to the two grounds identified in s 69A(1).
It recognises, for the first time, the public interest in publication of information related to court proceedings and the consequential right of the news media to publish such information: 69A(2)(a). It obliges the Court to only make a suppression order if satisfied that the prejudice to the proper administration of justice or undue hardship that would occur if the order were not made should be accorded greater weight than the consideration of the public interest in publication of information: s 69A(2)(b).
The appeal provisions have been extended to allow an appeal against a decision of a court not varying or revoking a suppression order.
In the 1984 Act a representative of the media who wished to appeal but who had not appeared before the primary court had to satisfy the appellate that his or her failure was not attributable to a lack of diligence: s 69A(6)(c). That particular subparagraph has not been repeated in the 1989 Act.
The legislative history demonstrates Parliament’s concern to ensure that the Courts are open to the public and to public scrutiny. Since 1978 Parliament has consistently narrowed the circumstances in which suppression orders can be made.
Most recently Parliament has required the Courts to take into account on any application for a suppression order the public interest in the publication of Court proceedings.
To which court does the appeal lie?
Section 69B of the Evidence Act provides that no appeal lies against a decision or order of a Court made under Division 2 of Part 8 of the Evidence Act, except as provided in that Division. That Division includes suppression orders.
Any appeal therefore is regulated by s 69B of the Evidence Act itself. In particular no appeal lies under either the Criminal Law Consolidation Act 1935 (SA) or, if the order had been made by an inferior court, the District Court Act 1991 (SA) or the Magistrates Court Act 1991 (SA).
Section 69B(1) provides:
“69B (1) An appeal under this division lies to -
(a)the Court to which appeals lie against final judgments or orders of the primary court; and
(b)where there is no such court - the Supreme Court constituted of a single judge, and whether the appeal lies in accordance with the above principles some court other than the Full Court, a further appeal lies to the Full Court from a judgment or order of the primary appellate court.”
‘Primary court’ is defined in s 68 in the following terms:
“primary Court in relation to an appeal, means the court by which the decision or order subject to appeal was made.”
In this case the decision was made by a judge of this Court sitting in the criminal jurisdiction of this Court. If it were a final judgment of a judge sitting in the criminal jurisdiction of this Court an appeal would lie, pursuant to the Criminal Law Consolidation Act, to the Full Court of this Court sitting as the Court of Criminal Appeal.
Is leave to appeal required?

HWTL qualifies as a representative of a newspaper.
Section 69A(9) identifies the persons who are entitled to institute or be heard on any appeal. In particular a representative of a newspaper or a radio or a television station is a person entitled to institute or be heard on appeal: s 69A(9)(c).
Not only are the identified parties in paragraph (a) to (d) of ss(9) entitled to institute and be heard on appeal but a person who did not appear before the primary court but has, in the opinion of the appellate court, a proper interest in the subject matter of the appeal or proposed appeal is a person entitled to institute or to be heard on an appeal: s 69A(9)(e).
However, s 69A(9) provides that a person who did not appear before the primary court may only institute an appeal or be heard on an appeal, by leave of the appellate court which would be granted if the appellate court is satisfied that the person’s failure to appear before the primary court is not attributable to a lack of proper diligence.
In this case the HWTL did not appear before Martin J at any time, but in particular at the time when the suppression order complained of was made.
The Solicitor-General argued that the words which follow the comma in paragraph (e) in subsection (9) (the words requiring leave) mean that HWTL is required to obtain leave of this Court because it did not appear before the primary court. In other words he argued that words requiring leave applied not only to ss (9)(e) but to each of paragraphs (a) to (d).
In my opinion, that argument must be rejected. The words requiring leave only apply to the person identified in subsection (9)(e). The persons identified in paragraphs (a) to (d) of subsection (9) are entitled to institute an appeal and be heard as of right because the words requiring leave do not apply to them.
The opening words in the words requiring leave refer to the same person who is referred to in paragraph (e) namely ‘a person who did not appear before the primary court’ and therefore, in my opinion, only apply to that person.
The words requiring leave could hardly ever apply to the person identified in subsection (9)(a). It is hardly conceivable that the applicant would not have appeared before the primary court. In those circumstances it is unlikely that those words would apply to any applicant. It is unlikely that a court would make, not make, vary or revoke a suppression order in the absence of a party to the proceedings in which the order was made or refused. If it did it would be highly unlikely that Parliament would require the party, who is presumably affected by whatever order was made, to establish a lack of proper diligence in failing to appear before that party could appeal.
It is also unlikely that the words requiring leave could ever apply to the person referred to in subsection (9)(d). The person there referred to is a person whom the primary court has found has a proper interest in the question of whether a suppression order should be made. In those circumstances it is unlikely that the legislature would have meant to require that person to obtain leave.
Moreover the persons identified in paragraphs (a) and (d) of subsection (9) are the same persons who had a right of appearance before the primary court and who are identified in subsection (5).
The only additional party who is given a right to institute or be heard on an appeal is the party identified in subsection (9)(e).
In my opinion, the reason for only requiring that party to obtain leave is because that party is the only party who did not have or who has not established an interest before the primary court. The media’s interest clearly arises because of the provisions of s 69A(2)(a) and (b).
In those circumstances it would be appropriate to require the party identified in ss (9)(e) to obtain leave.
In my opinion, the true construction of subsection (9) of section 69A leads to the conclusion that the only person who is bound to obtain leave to appeal is the person identified in subsection (9)(e).
There are further reasons for coming to that conclusion.
It is permissible to have regard to the Attorney-General’s second reading speech in considering the purpose the enactment was intended to serve: CIC Insurance Ltd v Bankstown Football Club (1997) 187 CLR 384 at 408; Burch v South Australia (1998) 71 SASR 12.
The second reading speech clearly shows that Parliament’s intention was to confine the obligation to obtain leave to the person identified in subsection (9)(e). In that second reading speech the then Attorney-General said:
“Subsection (9) sets out who is entitled to institute, or to be heard on, an appeal, namely the same persons as those referred to in subsection (5). Also a person who did not appear before the primary court but who, in the opinion of the appellate court, has a proper interest in the subject matter of the appeal or proposed appeal may institute and be heard on the appeal with, and only with leave of the appellate court. Leave can only be granted if the appellate court is satisfied that the person’s failure to appear before the primary court is not attributable to a lack of proper diligence.”
The 1989 Act intended to restrict and limit the circumstances in which a suppression order could be made. That was done by including s 69A(2) and making it mandatory for a court to have regard to the right of the news media to publish information related to court proceedings. The legislation now requires the court, for example, where it has been established that publication might cause prejudice to the proper administration of justice, to only make a suppression order if the court is satisfied that the prejudice to the proper administration of justice should be accorded greater weight than the right of the media to publish information related to court proceedings.
The section contemplates that the news media would make a more significant contribution and have a wider participation in applications and appeals of this kind. The Solicitor-General’s argument is inconsistent with the intention shown in the Second Reading Speech.
A further indicator which supports the construction of which I have arrived is the history of the legislation itself.
The 1984 section authorised the same persons to institute and be heard on appeal as the 1989 section. The 1984 section specifically provided that the representative of the news media in paragraph (c) and a person who did not appear before the primary court identified in paragraph (e) would need, in addition to all other matters, to satisfy the appellate court that their non-appearance before the primary court was not attributable to any lack of proper diligence. Neither party required leave but both parties needed to satisfy the court of that matter.
It is consistent with the wider scope given to the media in the 1989 section to read that section as only requiring the person identified in paragraph (e) as being required to obtain leave.
If Parliament had wished to continue to require the news media to satisfy some threshold where the representative of the news media did not appear in the primary court, it could quite easily have said so as it had done in the 1984 Act.
In my opinion, Parliament intended to give the representative of the news media a wider right than had existed in the 1984 Act which, of course, is consistent with the thrust and intention of the 1989 Act.
HWTL is entitled to appeal as of right pursuant to s 69A(9) of the Evidence Act. It is a representative of a newspaper or a radio or television station and therefore has an entitlement under s 69A(9)(c) to institute or to be heard on this appeal.
HWTL does not require leave to appeal and it is entitled to appeal as of right subject to satisfying any procedural requirements otherwise imposed on it by any Rule of Court or any other statute.
If I am wrong about that and HWTL requires leave to appeal this Court would grant leave to HWTL to institute and be heard on the appeal if this Court believes that HWTL’s failure to appear before the primary judge was not attributable to a lack of proper diligence. Section 69A(9) requires the court to grant leave to appeal if satisfied that the person’s failure to appear before the primary court is not attributable to a lack of proper diligence.
I would grant leave to appeal if leave were required because, in my opinion, HWTL has satisfied this Court that its failure to appear before the primary judge was not attributable to a lack of proper diligence. The only matter to which the Court must have regard in considering an application for leave to appeal under s 69A(9) is the reason for the person’s failure to appear before the primary court. No other matters are made relevant by the statute.
In the circumstances of this case the only question then, if leave is required, is whether HWTL’s failure to appear before the primary court on 21 June 2002 was attributable to a lack of proper diligence.
HWTL was not aware that the matter was to be heard. It was not given notice of the matter. It was not given notice of the application.
In those circumstances it cannot be said that its failure to appear was attributable to a lack of proper diligence.
It follows therefore that if leave were required then I would grant leave to appeal.
What is the procedure which governs appeals of this kind?
The next question which must be determined is whether there is any procedure and in particular any time limits within which appeals of this kind should be brought.
HWTL contended that the time for institution of an appeal under s 69A(9) was regulated either by s 27(3) of the Acts Interpretation Act 1915 (SA) or by r 95 of the Civil Rules. It did not contend that there was no procedure regulating appeals under this section.
HWTL argued that, in the absence of any time limit in the Evidence Act or any other Act or Rule of Court, s 27(3) of the Acts Interpretation Act 1915 (SA) applies. That subsection provides:
“(3)Where no time is prescribed or allowed within which any thing must be done, the thing must be done with all convenient speed and as often as the prescribed occasion arises.”
The appellant’s first argument was that s 27(3) of the Acts Interpretation Act applies. In my opinion, it would be inappropriate to approach the matter that way. That section can only apply if there is no time prescribed or allowed by some other instrument.
The first question which must be decided is whether or not appeals of this kind from a Judge of this Court sitting in the criminal jurisdiction of this Court are governed by r 95 of the Civil Rules.
This Court has passed rules governing the practice and procedure for criminal appeals: Supreme Court Criminal Appeal Rules 1996 (SA) (The Criminal Appeal Rules). However they are silent on applications for leave to appeal or appeals against suppression orders made by a single Judge of this Court in the criminal jurisdiction. Those rules assume that any application for leave to appeal or any appeal will be brought pursuant to s 352(1)(a) and (b) of the Criminal Law Consolidation Act 1935 (SA).
The Supreme Court Rules 1987 (SA) (the Civil Rules) provide for the practice and procedure in relation to all actions commenced on and after the commencement date which are not governed by Special Rules: r 1.04.
An action includes any form of proceeding in the Court: r 5.00.
Both HWTL and the Director Of Public Prosecutions contended that r 1.04 picks up appeals under s 69A of the Evidence Act because there are no Special Rules which govern those appeals.
An order under s 69A can be made in both civil and criminal proceedings. Whilst an order may be made in criminal proceedings a challenge to that order by way of appeal under s 69A(9) is not itself a criminal proceeding but a proceeding sui generis. In my opinion, the party’s contentions are correct and appeals of this kind are governed by r 1.04.
This Court, of which I was a member, when hearing this application in private doubted that the Civil Rules applied to an application for leave to appeal or an appeal under that section. Having had the benefit of argument on this hearing I am satisfied that those doubts can be put aside and that applications for leave to appeal or appeals under s 69A(9) are governed by the Civil Rules.
It makes no difference that because of the provision of s 69B(1) that this appeal lies to the Court Of Criminal Appeal because the Court Of Criminal Appeal is the Full Court by a different name.
In my opinion, this appeal is governed by the Civil Rules and in particular r 95.
Rule 95.19 provides:
“Rule 95 is to apply to all appeals to the Full Court other than those under Part XI of the Criminal Law Consolidation Act, 1935, but subject to any Act, rule or order to the contrary.”
As I have already explained this appeal, in my opinion, is not an appeal under the Criminal Law Consolidation Act and therefore r 95.19 does not preclude the Civil Rules applying to this appeal.
Although practice directions cannot themselves determine the construction of the Rules it is relevant to note that Practice Direction 30 provides:
“Applications to vary or revoke a suppression order made by the Supreme Court on appeal from another court are to be treated as interlocutory applications in the matter of the appeal and the procedure will be that prescribed by rule 67 of the Rules Of Court.
Where such applications are in respect of suppression orders made in the criminal jurisdiction of the court the procedure in rule 67 will be applied mutatis mutandis.”
Rule 67 applies to interlocutory applications. The practice direction clearly contemplates that the Civil Rules should apply to appeals under this Part of the Evidence Act, whether the primary court is exercising civil or criminal jurisdiction.
Because, in my view, the appeal is governed by r 95 then it follows that it is not governed by s 27(3) of the Acts Interpretation Act. Section 27(3) only has application where no time is prescribed or allowed within which anything must be done. Because r 95 applies it provides a time and therefore s 27(3) has no application. It therefore is unnecessary for this Court to determine the effect of s 27(3) in appeals of this kind.
Specifically this Court does not have to consider whether the obiter dicta remarks of Doyle CJ in Reservation Of Questions Of Law (1997) 69 SASR 550 at 554 are correct. In that case he said:
“A subsidiary submission was advanced based on s 27 of the Acts Interpretation Act 1915 (SA). Section 27(3) provides that if no time is prescribed within which something must be done ... ‘the thing must be done with all convenient speed ...’ Even if the DPP has not acted with all convenient speed, in my opinion that does not deprive the court of jurisdiction to make an order. Failure to act with all convenient speed is relevant to exercise of the court’s discretion but not a matter that deprives the court of power to exercise the discretion.”
It is still an open question whether there is any residual discretion in the court to allow a proceeding to be commenced or continued where the party is required to comply with s 27(3) of the Acts Interpretation Act and has not established that what has been needed to be done has been done with all convenient speed. That is a question for another day.
Rule 95
Because the Evidence Act does not otherwise provide the time to institute this appeal it is governed by r 95.02. This appeal should have been instituted within 14 days after the decision complained of was made: r 95.02.
Of course, there was no prospect of HWTL instituting an appeal at that time. It was not aware of the order at that time. Even if it had been aware of the order it would not have appealed. It has only appealed now to protect its position in relation to the contempt proceedings.
Rule 95.02 allows for the court to extend time within which to appeal.
In this case the appellant sought leave to appeal in an application filed in this Court on 27 November 2002 and also sought an order extending the time within which leave to appeal might be sought.
In support of the application it filed an affidavit exhibited to which was a copy of a draft notice of appeal.
For the reasons already given the appellant should have filed the notice of appeal and sought an extension of time within which to appeal.
It also filed the further notice for specific directions on 20 January 2003 and filed a further affidavit on 23 January 2003 in which it exhibited a further copy of that draft notice of appeal. As mentioned earlier, the notice of appeal was filed, following directions of this Court, on 7 February 2003.
The only written application thus far made by HWTL is for leave to appeal and an extension of time within which to make that application for leave to appeal. It has not made an application for an extension of time within which to appeal.
However, at least since 7 February, it has been clear that HWTL was proceeding in the alternative, and that an extension of time might be necessary.
In those circumstances I think this Court can treat the application for an extension of time for leave to appeal as an application for an extension of time within which to appeal.
The Court’s Powers On Appeal
Section 69B(3) provides for the powers which might be exercised by this Court on appeal. This Court can confirm, vary or revoke the suppression order or alternatively can make any order or decision that could have been made by the primary court. The Court may exercise those powers in conjunction with the powers given to the Court under r 95.
Those powers are extensive and include the power to receive further evidence upon any question of fact.
Upon that basis this Court should treat the application as having been made on 27 November 2002.
The Solicitor-General argued that HWTL had been guilty of considerable delay in bringing this appeal and there were lengthy unexplained delays.
As I have already mentioned the order was unimportant from HWTL’s point of view until 12 July 2002 when it was charged with contempt following a publication of Mr Vlassakis’s photograph.
After that time I suppose it could have moved with greater speed if it wished to challenge this order on appeal, but it was in something of a procedural dilemma at that time as to whether to challenge the order before the Judge who made the orders, or before the Judge who was to hear the contempt application or on appeal.
Clearly enough no other party suffered any prejudice during this period and if an extension of time is to be granted HWTL’s failure to proceed more quickly over this period is a matter of little consequence.
I would be inclined to extend the time within which to appeal because the matters which have been raised on this appeal are important not only in relation to this matter but also in relation to a number of other matters which come before the courts.
I would extend the time within which to appeal to 7 February 2003.
Grounds of Appeal
The appellant has raised four grounds of appeal for consideration by this Court:
“1That the Learned Trial Judge had no jurisdiction or power under Sections 68 and 69A of the Evidence Act 1929 (SA) to make an order suppressing the image of Mr Vlassakis without at the same time suppressing his name.
2That the Learned Trial Judge failed to afford those media interests who opposed the suppression orders procedural fairness in that his Honour denied them access to the two page document containing submissions and factual matters handed up on behalf of counsel for Mr Vlassakis.
3That the Learned Trial Judge failed to give any, or any adequate reasons for the orders he made.
4That the Learned Trial Judge’s discretion miscarried in concluding that prejudice to the proper administration of justice would occur if the orders were not made and/or that this consideration should be accorded greater weight than the public interest in publication information relating to court proceedings and the consequential right of news media to publish such information.”

The appellant seeks an order setting aside the orders made by the Judge on 21 June 2001 and/or a declaration that the orders were void ab initio.
No jurisdiction or power
The grounds of appeal and the orders sought raise important questions.
The two orders appealed from are these:
1.An order suppressing publication of the image of Mr Vlassakis in any form, including photographs, sketches and illustrations.
2An order suppressing publication of any description of Mr Vlassakis - that is, of his appearance - which would have the capacity to lead to identification of him by a reader of the description.
The appellant’s short point is that an order of that kind is not permitted under Part VIII of the Evidence Act because an order in the terms made by the trial Judge is not a “suppression order”.
The appellant has argued that an order in the terms made could not come within paragraph (a) of the definition of suppression order in s 68 because it is not an order forbidding the publication of specified evidence or of any account or report of specified evidence. Nor, the appellant has contended, could it come within paragraph (b) because it is not an order forbidding the publication of the name of a party, witness or a person alluded to in the course of proceedings before the Court.
In other words in respect of paragraph (b) it is the appellant’s contention that a suppression order must contain within it an order forbidding the publication of the name of a party or witness or a person alluded to in the course of proceedings before the order can also extend to any other material tending to identify any such person.
The suppression orders were made on the hearing of the information against Mr Vlassakis. Thus it is that he was a party.
Section 68 does allow for a suppression order forbidding the publication of the name of a party and of any other material tending to identify any such person.
In my opinion, however, s 68 does not permit the making of a suppression order where the order does not forbid the publication of the name of the party but only forbids publication of material which would tend to identify the party.
The appellant contended that suppression of Mr Vlassakis’ name was a trigger or pre-requisite to an order forbidding the publication of the other identifying material. I agree with that submission.
If any order is to be made under Part VIII of the Evidence Act, and in particular a suppression order of the kind referred to in paragraph (b) of the definition of suppression order in s 68 of that Act, the order must forbid the publication of the name of the party or witness or person alluded to in the course of proceedings. It is the order forbidding the publication of the name of one of those persons which also allows for a further order forbidding the publication of any other material tending to identify any such person.
It is not permissible, in my opinion, for an order to be made under Part VIII of the Evidence Act, and particularly under paragraph (b) in the definition of suppression order in s 68, unless the order first forbids the publication of the name of one of those persons in paragraph (i) and (ii) of paragraph (b).
If a party, witness or person alluded to in the course of proceedings does not obtain an order forbidding the publication of that person’s name then the publication of the name will identify that person.
In those circumstances the words “of any other material tending to identify any such person” will have no work to do.
The use of those words in paragraph (b) is for completeness. If the Court is not satisfied that simply the forbidding of publication of the name of a party, witness or person alluded to in the course of proceedings before the Court is enough to protect the identity of that person then the Court can make the further orders contemplated in those further words.
It cannot, however, in my opinion, allow the publication of the name of the party, witness or person alluded to in the course of proceeding but at the same time purport to make orders forbidding the publication of material which would tend to identify that person. The person has already been identified.
There are conflicting authorities in this Court. In B v M (1991) 161 LSJS 227 Cox J said at 231:
“In my opinion the components of the definition of “suppression order” in s 68 should be interpreted flexibly and disjunctively. I think a court has power to make an order that forbids the publication of only the name of a potential witness or that, while not forbidding the publication of the witness’s name, forbids the publication of other specified material that would tend to identify the witness. It would be open to a court to forbid the publication of only the address of a witness, say, or only his occupation. What the Act is really saying is that an order may be made that forbids the publication of such material as the court may specify that would tend to identify the person in whose favour the order is made, and that such material may take any one or more of a number of forms. The court may make a general suppression order which will pick up the whole of the language of paragraph (b), or it may select those enabling parts of the paragraph that are properly applicable to the case of the party or witness in question and fashion its order accordingly. That really means, I suppose, that one is interpreting the paragraph by giving the word “and”, in the expression “and any other material”, a disjunctive, not a conjunctive interpretation. An alternative construction is that any suppression order must include the name of the party or witness and that the effect of the concluding reference to “any other material” will empower the court to specify such material, if any, additional to the name, the publication of which should fairly be suppressed. Such an order could be made in a specific or in a general or allusive way. I prefer the view that the suppression of the name is not an essential component of a valid suppression order, but I do not need to decide the point in order to dispose of this appeal.”
I agree with part of that dicta. I think it is permissible for a court to make an order simply suppressing the name of a party, witness or a person alluded to in the proceedings. I do not, however, agree that a s 68 order permits the court to not forbid the publication of the name of a party, witness or person alluded to in the proceedings but make an order suppressing from publication other material that will tend to identify the witness.
I do not think that the word “and” in the expression “and any other material” can be read disjunctively. I think the words “and any other material tending to identify any such person” have been included to complement the Court’s power to forbid the publication of the name of a party, witness or a person alluded to in the proceedings. It is not a separate power but ancillary to the power to forbid publication of a name. The word “and”, in my opinion, cannot be read disjunctively.
In Hann v Ankor (1996) (S 5766 (Unreported) Perry J, 19 August 1996) Perry J said:
“When one has regard to the definition of ‘suppression order’ it is limited to an order forbidding the publication of the name of a party or witness, or of a person ‘alluded to in the course of proceedings before the court’. Even if the reference to witness in the definition of ‘suppression order’ must be regarded as extended by the reference in s 69(a)(1)(ii) to a ‘potential witness’, the fact remains that a suppression order means only an order forbidding the publication of a name, together, of course, with ‘any other material tending to identify any such person’.
Here there was no application to suppress a name, only an address. Despite the arguments advanced by Mr Bailey, who has said everything which could be said in favour of the appeal, it seems to me that the appellant cannot surmount that difficulty. It appears to me that there is no jurisdiction under s 68 or s 69A of the Evidence Act to make an order suppressing publication of an address only whether of a witness, potential witness, or a party.
While one sees occasionally orders suppressing publication of the address for a party or witness, in my experience, such orders have always been ancillary, or incidental, to orders suppressing the publication of a name, and must be regarded as coming within the scope of the words ‘any other material tending to identify any such person.”
In my opinion, Perry J’s analysis is to be preferred to that of Cox J. As Perry J has pointed out a suppression order in paragraph (b) of s 68 means an order forbidding the publication of the name of a party or witness or a person alluded to in the course of proceedings before the court. If that order is not to be made then the ancillary power contained in the further words “and of any other material tending to identify any such person” cannot be invoked.
In my opinion the appellant’s argument should be accepted and the orders made by the trial Judge set aside.
It was not sought to justify the orders on any other grounds apart from the powers contained in Part VIII of the Evidence Act.
That would be enough to dispose of this aspect of the appeal but in case this matter needs to be reconsidered elsewhere it would be appropriate to deal with the remaining grounds of appeal.
Denial of procedural fairness
At the hearing of the application for a suppression order Mr Vlassakis’s counsel handed to the learned trial Judge a two page document which apparently contained factual matters and submissions.
The prosecutor indicated to the trial Judge that she agreed with the factual matters in the document and supported the making of the order.
The solicitors then appearing for The Advertiser, The Australian, The ABC and Channels 7, 9 and 10 complained to the trial Judge of the procedure adopted by Mr Vlassakis’s counsel in putting factual matters and submissions to the Judge without making them known to the solicitors acting for the media.
As I have already observed they complained that they were at a disadvantage in making their submissions because they were unaware of the contents of the two page document.
The Judge refused them access to that document. They were given no indication of the contents of the document or the grounds for the application.
The media representatives were advised that the ground for the application was to prevent prejudice to the proper administration of justice but were only told that the reasons supporting the application were outlined in the document handed to the trial Judge.
In those circumstances the media was unaware of the factual basis for the application and how it was that Mr Vlassakis contended that the prejudice to the proper administration of justice should be accorded greater weight than the considerations of the public interest in publication of the information relating to these Court proceedings: s 69A(2)(b).
The trial Judge read the two page document and refused to require either Mr Vlassakis’s counsel or the prosecutor to produce the document to the solicitors acting for the media.
The appellant contended on this appeal that in those circumstances the media representatives then appearing before the trial Judge could not make any sensible submissions in opposition to the application for suppression orders. It was submitted that the media interests were in no position to ensure that the right of the media interests enshrined in subsection 69A(2)(a) was afforded the significant weight which it must be afforded. It was submitted that in those circumstances the media interests were denied procedural fairness and the order made by his Honour should therefore be set aside. The appellant relied upon Minister For Immigration And Multicultural Affairs v Bhardwaj (2002) 187 ALR 117 per Gaudron and Gummow JJ at 41-53. That case is a decision relating to the obligations of the Immigration Review Tribunal to afford natural justice to a party before it. That case is of little assistance in determining the appropriate procedure for applications for a suppression order.
The appellant also relied upon the dicta of Brennan J in Kioa v West (1985) 159 CLR 550 at 628.
That case also concerned an administrative decision under the Migration Act 1958 (Cth) and a review of that decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth).
In that case an allegation relied upon by the Minister was not put to the applicants. Moreover it was apparently not relied upon by the delegate who was charged with making the decision but was part of the material before the delegate which he considered before making a decision.
Brennan J said at 628:
“A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise: Kanda v Government of Malaya [1962] AC 322 at 337; Ridge v Baldwin [1964] AC at page 113-114 per Lord Morris; De Verteuil v Knaggs [1918] AC at 560-561. The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence or which are not relevant to his decision or which are of little significance to the decision which is to be made. Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed. As Lord Diplock observed in Bushell v Environment Secretary [1981] AC at 97:
“To ‘over judicialise’ the inquiry by insisting on observance of the procedures of a court of justice which professional lawyers alone are competent to operate effectively in the interest of their clients would not be fair.”
Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.”
As is obvious from Brennan J’s remarks that case concerned an administrative decision and was directed to those who were charged with making such decisions. In this appeal this Court is concerned with an application made to a court and with the obligations imposed upon the court on the particular type of application which s 69A envisages.
The first matter to observe in applications of this kind is that whilst a representative of a newspaper or a radio or television station has a right of audience on applications for a suppression order under s 69A and is thereby entitled to make submissions to the court on those applications, that representative is not a party to the proceedings. Secondly, in this case, the appellant did not appear before the Court and did not seek disclosure of the information provided to the trial Judge, although it is true that representatives of newspapers and television stations did. Thirdly, as is apparent from the transcript, the reason for this application was to protect Mr Vlassakis’ safety. Mr Vlassakis had pleaded guilty to four counts of murder in circumstances where others were charged with the same counts and other counts of murder. It is clear that this application was made to protect Mr Vlassakis in the gaol environment.
On applications of this kind it may be necessary to withhold information from persons who are neither applicants nor parties to the proceedings where the disclosure of that information would render the application nugatory.
The paramount concern on this application, which was made abundantly clear on later applications and hearings, was the safety of Mr Vlassakis.
The representatives of the newspapers, radio stations or television stations are not necessarily legal practitioners. The Court has no control over the use to which information which is made available to them could be put except by making a suppression order.
True it is the trial Judge could have required the disclosure of the contents of the two page document to the solicitors who appeared on behalf of the newspapers and television station and later made an order forbidding publication of the contents of the document to the newspapers or the television stations or any wider publication.
However where there are genuine concerns for the safety of an applicant or a party to proceedings the Court is entitled to adopt a procedure, on considering applications for suppression orders, which would preserve those persons’ safety and not render ineffective the very application which is made.
In my opinion, the trial Judge cannot be criticised for concluding that in the circumstances of this case it was inappropriate to make available to the representatives of the newspapers or the television stations the information contained in the two page document.
He could have adopted a more formal procedure and made an order suppressing from publication the matters contained in the two page document but I do not think he can be criticised for adopting the procedure which he did.
In the circumstances of this case I cannot say that this appellant had been denied procedural fairness.
The second ground of appeal fails.
Failure to give reasons
The appellant contended that the Judge failed to give any sufficient reasons for the orders which he made which are now subject to this appeal.
It was contended that an application of this kind was no different from any other and that there was an obligation on the trial Judge to give reasons. In South Australia v Carterand Myers (1991) 161 LSJS 325 Cox J said at 328 that there was an obligation upon a judge hearing an application of this kind to indicate his reasons for making (and, inferentially, not making) a suppression order. His Honour said that just a sentence or two would be sufficient so that the parties and, if necessary, any appeal court would not be left to speculate about the reasons for the making of the order.
I agree with Cox J’s remarks that there is an obligation on the Court in applications of this kind to give reasons for ruling on an application, variation or revocation of a suppression order. The obligation is no different to the obligation which is imposed upon a court when considering applications for leave to appeal where to not give reasons would be exceptional: Roy Morgan v State Revenue (Vict) (2001) 207 CLR 72 per Gaudron, Gummow, Haine and Calaman JJ at 83.
Not only does the obligation arise at law but, I think, the obligation is implicit in s 69A(10) which requires a court, which has made a suppression order, to report to the Attorney-General setting out full particulars of the reasons for which the order was made: s 69A(10)(b)(iv). If full particulars need be given to the Attorney-General reasons should be given to parties and those entitled to be heard on applications of this kind.
The reasons need not be extensive. They should, however, at least identify the source of the power to make the order, i.e. whether the order is made to prevent prejudice to the proper administration of justice or to prevent hardship to any of the persons in s 69A(1)(b).
Ordinarily the reasons ought to disclose, if s 69A(1)(a) is the source of power to make the order, how it is that a suppression order is necessary to prevent prejudice to the proper administration of justice and, if the source of power is s 69A(1)(b), the person or persons who will suffer the undue hardship and how it is that the order might prevent undue hardship being suffered.
Moreover, because of the provisions of s 69A(2) the Court should ordinarily give reasons why it is that the prejudice to the proper administration of justice or the undue hardship that would occur should be accorded greater weight than the considerations of the public interest in publication of information relating to court proceedings.

For the proposition contained in the first sentence in [151] Hayne cited Cameron v Cole (supra), DMW v CGW (supra), Ousley v R (supra) and Re: Macks; Ex parte Saint (supra) in particular [20]-[23], [216], [328]-[329].
Hayne J’s reasons do not support Mr Houghton’s proposition.
Mr Houghton also very properly referred this Court to a decision of the Full Court of the Federal Court in Matthews v Australian Securities And Investments Commission (2000) 97 FCR 396. In that case the appellant submitted that an order made by a single judge of the Federal Court was made without jurisdiction and, in those circumstances, the order became a nullity and that any proceedings in the Federal Court alleging contempt of those orders were incompetent.
The Full Court of the Federal Court said at 401:
“An order of the superior Court made in excess of jurisdiction is merely voidable and remains valid and enforceable until set aside. See Cameron v Cole (1944) 68 CLR 571; Re Wakeham at 873 (162), (164) - (165); Re Zogoridis; Ex Parte Katelaris (1990) 99 FLR 439; Autistic Association (NSW) v Dodson (1999) FCA 715; Australia And New Zealand Banking Group v Merribee Pastoral Industries Pty Ltd (1998) 84 FCR 367; Robins v Incentive Dynamics Pty Ltd (1999) 91 FCR 423; Westpac Banking Corporation v Paterson (1999) 95 FCR 59; 167 ALR 377; Elders Ltd v Swinbank (2000) 96 FCR 303 at 315 (43); Australasian Meat Industries Employees Union v Mudginberri Station Pty Ltd (1986) 65 ALR 683 at 695.”
The decision in Minister for Immigration and Multicultural Affairs v Bhardwaj (supra) has no relevance whatsoever to the question of the status of orders of superior courts.
The decisions in Scott v Scott (supra) and Attorney General v Kernahan and Others do not support the appellant’s contention.
The decision in Cameron v Cole (supra), the further decisions of the High Court cited by Gaudron J in Re: Macks; Ex parte Saint (supra), the decision in Re Macks; Ex parte Saint (supra) and the decision of the Full Court of the Federal Court in Mathews v Australian Securities and Investments Commission (supra) are authorities directly against the appellant’s contention. Those cases affirm and reaffirm the principle established in 1667 in Peacock v Bell and Kendal (1667) 1 Wms Saund 73 at 74; 85 E.R. 84 at 87/88.
In those circumstances the appellant’s contention should be rejected.
This Court is bound by the decision of the High Court in Cameron v Cole and because this Court is a superior court of record its orders stand until set aside. In those circumstances I would decline to make the declaration sought.
I propose the following orders:
1      Extend the time to appeal until 7 February 2003.
2      Appeal allowed.
3      The orders made on 21 day of June 2001 set aside.
4      Declaration as sought refused.
BLEBY J: I am indebted to Lander J for his recital of the facts. I will not repeat them. However, I express no opinion on the validity of the orders made by Martin J on 27 June 2001. They were not in question on this appeal, and their validity was not argued. It seems to me that there might well be a situation in which such an order is a valid suppression order, but it would be inappropriate to express any view on the validity of that particular order.
Appeal as of right
I agree with Lander J that the appellant has an appeal as of right to this Court. I agree with his construction of s 69A(9) of the Evidence Act in that regard.
Rules governing the appeal
I was a member of the Court which heard the appellant’s ex parte application for leave to appeal and for an extension of time. I was party to the doubt then expressed that the Supreme Court Rules applied to this appeal. I am now satisfied, for the reasons given by Lander J, that they do. Accordingly, the time for instituting the appeal is governed by Rule 95.02.
I also agree that the application for an extension of time for leave to appeal should be treated as an application for an extension of time within which to institute the appeal, and that in all the circumstances we should treat that application as having been made on 27 November 2002.
Application for an extension of time
I would be prepared to extend the time in which to lodge the appeal to 7 February 2003 but only because of the somewhat unusual circumstances attending this particular case.
I am prepared to accept that between 11 July 2002, when the appellant first became aware of the existence of the suppression order, and 27 November 2002, whilst it could have been more diligent than it was, the appellant was faced with certain procedural difficulties and suggestions, and that during that period no-one was prejudiced by the appellant’s delay. However, Rule 95.02 does not prescribe that the appeal must be instituted within 14 days of the appellant ascertaining the existence of the order. It requires an appeal to be instituted within 14 days after the decision, judgment or order appealed from, or within such other time as the Court may fix.
The order in question was made on 21 June 2001. An application was later made by other parties for its revocation. That application was refused on 18 October 2001. As we have held, the appellant had an appeal as of right against either of those orders: ss 69A(8) and (9), Evidence Act 1929. The appellant also had a right to bring its own application to vary or revoke the suppression order: s 69A(6) Evidence Act. What is not explained by the appellant is why no action was taken between the making of the orders referred to and 11 July 2002.
The only explanation given by the appellant is that it did not know of the order, that it is usually informed about suppression orders in South Australia through the Adelaide ‘Advertiser’ or Australian Associated Press, but that on this occasion it was not so informed.
Plainly, it is not possible for the Court or parties involved to arrange for service of a suppression order on any person who might wish to publish information the publication of which is proscribed by the order. That is why subsections (10) and (11) require the Court immediately to forward to the Registrar a copy of the order and notification of any variation or revocation of it. The Registrar maintains a register of all suppression orders (subsection (12)), and that register is to be made available for inspection by members of the public free of charge during ordinary office hours (subsection (13)). There is plainly an obligation on a media organisation, before publishing material which might be the subject of a suppression order, to search the register to ensure that no such order has been made. This is particularly so in a case such as this which is likely to attract and does indeed attract a high media profile.
There is no suggestion that the appellant ever searched the register of orders or caused it to be searched. It chose to rely on the goodwill of others to inform it of any suppression order. In my opinion, this shows a lack of diligence between the time of the making of the relevant orders and the apparent breach of the order by the appellant.
In one sense it can be said that the order was unimportant from the appellant’s point of view until 12 July 2002 when it was charged with contempt. It was only unimportant because the appellant had done nothing to breach the order in that time. The order was, nevertheless, important from the appellant’s point of view from the moment it was made. It was an order which restricted the right of the appellant and others to publish an image of Mr Vlassakis in this State. In my view, it is not a ground for extending the time within which to appeal that the appellant did not know of the order until after publication of Mr Vlassakis’ image, apparently in contravention of the order. To take account of the actions of the appellant which occurred only after the publication in breach of the order is to render meaningless the provisions of Rule 95.02 specifying the time within which the appeal must be lodged, and to suggest that the time for appeal should effectively only run from the date of any breach. To take such an approach can only encourage a media organisation not to fulfil the obligation it has, before publication, to check the register or to have adequate mechanisms in place to ensure that it is aware of any relevant suppression order.
However, there are particular features of this case which justify the granting of an extension.
In the first place, there was, until now, uncertainty, including within the Court itself, as to whether the time limit specified in Rule 95.02 applied at all. In that state of uncertainty it would be inappropriate to penalise an appellant for not taking action within the time required by the rule.
Secondly, the grounds of appeal raise a question as to whether the Court had power to make the order at all. Whilst a collateral attack on the validity of the order could have been made by way of defence to the contempt proceedings, even if that meant referring a question of law to the Full Court, the validity question has now been fully argued before this Court at the same time as the argument on the extension of time. It is appropriate in those circumstances that this Court should answer the question relating to the validity of the order, in order to avoid further expense to the parties by requiring that the question be argued in the contempt proceedings whether before a single Judge, with the possibility of a further appeal, or on a case stated to the Full Court.
It is only because of those special circumstances that I would grant leave to extend the time. Now that the question of the application of Rule 95 to an appeal under s 69A has been resolved, I would expect appeals against suppression orders or against refusals to vary or revoke suppression orders to be brought within the time required by Rule 95.02. I would not normally be prepared to extend time for an appeal merely because a breach of a suppression order may have occurred and because of that, an appeal against the order is sought to be instituted.
The grounds of appeal
I agree with Lander J and for the reasons that he gives that there was no denial of procedural fairness (ground 2).
I agree that there was no relevant failure to give reasons and that ground 3 must fail. I agree with what Lander and Besanko JJ have had to say about that ground.
As to ground 4 (miscarriage in the exercise of the discretion), I agree with Lander J and for the reasons that he gives that there is no substance in this ground.
As to ground 1 concerning the power of the Court to make the order in question, I agree with the conclusion reached by Besanko J and with the substance of his reasons. In my opinion, that conclusion promotes the purpose and object of Part 8 of the Evidence Act and of s 69A in particular, and for that reason also is a construction to be preferred: s 22, Acts Interpretation Act 1915.
I accept that in certain circumstances, and the situation applicable to Mr Vlassakis is probably one of them, publication of a person’s image, even though his name may have been published, can still serve to identify, in a particular group or community, a person whose face is known to the members of the community but whose name is not. In my opinion, the proper interpretation of s 68 and s 69A allows a flexible use of a suppression order to meet such circumstances.
Conclusion
It follows that I would extend the time within which the appellant may institute its appeal to 7 February 2003 and that I would dismiss the appeal.

BESANKO J: I have had the advantage of reading the reasons for judgment of Lander J. I gratefully adopt his Honour’s statement of the facts.
I agree with his Honour that Herald and Weekly Times Ltd has a right of appeal to this Court and that the appeal is governed by r 95 of the Supreme Court Rules 1987. I also agree that the time within which to appeal should be extended to 7 February 2003. I agree with his Honour’s reasons for reaching those conclusions.
With respect to Lander J, I would refrain from expressing an opinion on orders made by the Judge which are not the subject of the appeal to this Court.
There are four grounds of appeal. I agree with the reasons and conclusions of Lander J with respect to grounds 2 (alleged denial of procedural fairness) and 4 (allegation that the exercise of the discretion miscarried).
With respect to ground 1 (jurisdiction or power), in my opinion, the Judge had the jurisdiction or power under ss 68 and 69A of the Evidence Act 1929 (SA) to make an order suppressing the image of Mr Vlassakis without at the same time suppressing his name. In my opinion this ground of appeal fails. With respect to ground 3 (alleged failure to provide reasons) I agree that this ground of appeal fails, and I agree generally with the observations of Lander J. However, I wish to add some observations of my own.
The Jurisdiction or Power of the Court to make the Orders
The orders said to have been made without jurisdiction or power are as follows:
1.An order suppressing publication of the image of Mr Vlassakis in any form, including photographs, sketches, illustrations.
2.An order suppressing publication of any description of Mr Vlassakis – that is, of his appearance – which would have the capacity to lead to identification of him by a reader of the description.
Section 68 of the Evidence Act 1929 defines “suppression order” in the following terms:
“means an order –
(a)forbidding the publication of specified evidence or of any account or report of specified evidence; or
(b)forbidding the publication of the name of –
(i) a party or witness; or
(ii) a person alluded to in the course of proceedings before the court,
and of any other material tending to identify any such person.”
In this case, the relevant paragraph of the definition is paragraph (b). As I understand it, it is not disputed that Mr Vlassakis is a party or witness (paragraph (b)(i)).
The point raised is one of statutory construction. In theory, there are three possible interpretations of paragraph (b). The first interpretation is to read the word “and” as conjunctive, and therefore to be a suppression order within the definition the order must prohibit the publication of the name of the relevant person and of any other material tending to identify the person. The second interpretation is to read the word “and” as “and/or”, and therefore an order is a suppression order within the definition if it prohibits the publication of the relevant person’s name or of any other material tending to identify the person or both. The third interpretation is to read the word “and” as “or”, and therefore the order is a suppression order within the definition if it prohibits the publication of the relevant person’s name or of any other material tending to identify the person, but not if it prohibits publication of both.
The appellant put submissions in favour of the first interpretation, and the respondents put submissions in favour of the second interpretation. No party put submissions in favour of the third interpretation. It is not an interpretation supported by the wording of the definition of suppression order or by the statutory context in which the definition appears.
In my opinion, the first interpretation would not allow a Court to make an order which simply prohibited the publication of the relevant person’s name. To be valid the order would also have to prohibit the publication of any other material tending to identify the person. A further question arises as to whether there is any flexibility in the formula, “any other material tending to identify” the person. In other words, would an order suppressing the publication of a person’s name, age, address and occupation be a valid suppression order under the first interpretation? Arguably, it would not be a valid suppression order if there was another matter (ie., a matter not included in the order) which fell within the words, “any other material tending to identify” the person.
The second interpretation would enable a Court to prohibit the publication of all or any matters tending to identify the relevant person.
In my opinion, the second interpretation promotes the purposes and objects of Part 8 (Divisions 1 and 2) and reflects the intention of Parliament. I take this view for a number of reasons.
First, the second interpretation gives the Court flexibility in framing the relevant order. The other provisions of Part 8 (Divisions 1 and 2) suggest that flexibility is a desired feature of the statutory scheme. I do not accept the proposition that if there is no justification for suppressing a person’s name there is no need to protect his identity and therefore there can be no justification for suppressing other matters which might identify the person. Cases in which the justice of the case calls only for the suppression of a person’s image, address, occupation or the identity of his employer are not uncommon. By making a limited suppression order, the Court may appropriately prevent prejudice to the proper administration of justice or undue hardship (s 69A(1)).
Secondly, the provisions of Part 8 (Divisions 1 and 2) suggest that the Court should be careful to ensure that there is a proper basis for a suppression order, and the order itself should go no further than is warranted in the circumstances. That is made clear by the requirement that the Court consider and place weight on the public interest in the publication of information (s 69A(2)), the rights given to various interested persons (including the media) to make submissions on whether a suppression order should be made (s 69A(5)) and the rights given to various interested persons (including the media) to appeal (s 69A(8) and (9)).
Thirdly, the inflexible approach involved in the first interpretation may well prevent a Court from doing justice in the particular circumstances of the case. An applicant for a suppression order may be denied an order because, although the circumstances justify (in terms of s 69A(1)) the suppression of a photograph of the person or his address or occupation, the circumstances do not justify the suppression of the person’s name. Alternatively, if an order is made in such circumstances, the order will be wider than strictly necessary, and this seems contrary to the intent of provisions such as s 69A(2).
Finally, s 68A(4) provides:
“A suppression order may be made subject to such exceptions and conditions as the Court thinks fit and specifies in the order.”
Whether this subsection would provide a basis for the order of the Judge in this case even if the first interpretation of the definition of suppression order is correct, is a debatable point. On the one hand, it might be said that to make an exception in relation to a person’s name would not be within the terms of the subsection because such an exception would deprive the order of the essential characteristics of a suppression order. On the other hand, it might be said that as long as there is a valid suppression to begin with, the words of the subsection are wide enough to authorise any exception or condition. I do not need to resolve this point. At the very least it can be said that the presence of subsection (4) suggests an intention on the part of Parliament to provide for flexibility in the making of orders appropriate to the circumstances of the case.
There are a large number of cases dealing with the circumstances in which the Court will read “and” as “or”. In Re The Licensing Ordinance (1968) 13 FLR 143, Blackburn J identified two categories of cases in which the Court has been prepared to read “and” as “or”. The first category is that of cases where to give “and” its natural meaning would produce an extraordinary result. The second category of cases is where a list of matters is set out and joined by the word “and”, but the Court holds that the various matters are alternatives. On one view, the second category of cases are not cases where the Court reads “and” as meaning “or” but cases where the governing words have a dispersive effect. Blackburn J discussed the two categories of cases and gave examples in the following passage (at 146 – 147):
“Mr. Mitchell supported this argument by authorities which, he submitted, showed that the word ‘and’ can sometimes mean ‘or’. I do not think that I need examine these authorities seriatim. Each of them in my opinion falls into one or the other of two categories. The first category is that of cases where, if ‘and’ was given its natural meaning, the result was so extraordinary (to quote Lord Parker C.J. in R. v. Oakes (1), ‘an absurdity or unintelligibility’) that in order to make sense of the provision the court was obliged to say that it must read the word ‘and’ as if it had been ‘or’. The cases in the second category were those in which there was a list of items, the items being joined by ‘and’ and the list being governed or affected by words which showed that the list was a list of alternatives. In such a case, the word ‘and’, which is used to join the items in the list, is truly cumulative; it links the members of a class and its function is to indicate that the whole class is to be considered together. Governing the words which enumerate the members of the class are other words which categorize the class, as a whole, as a class of alternatives. Pace Mr. Mitchell, the word ‘and’ inside the class does not have dispersive or alternative force; its force is wholly cumulative; it is the words outside the class which give the dispersive effect. A common example is the wording of a statutory definition – for example, “ ‘motor vehicle’ includes motor cycles, tractors, and trailers” – where the ‘and’ has a truly cumulative meaning, but dispersive effect is given by the word ‘includes’. That is the explanation of Associated Newspapers Ltd. v. Wavish (2), which Mr. Mitchell cited to me.”

In BP Australia Ltd v South Australia (1982) 31 SASR 178, Wells J said (at 190 – 191):
“The third solution – and probably that which attracts me least – is represented by an appeal to the authority of certain decided cases. For many decades, books on statutory interpretation have collected reports of cases in which the word ‘or’ has been read as the word ‘and’, and vice versa. I say this solution attracts me least, because a careful reading of the many authorities cited reveals that the substitution is only made where the context of the provision under construction clearly admits of the substitution, and that the Court is only prompted to make it when conditions justifying the application of the golden rule exist.”
In more recent times it seems that Judges have been prepared to expand the second category of cases. It has been held that the dispersive effect may arise as a result of the context in which the section appears (Gillespie v Ford (1978) 19 ALR 102 at 107; Re Kotses (1995) 59 FCR 597).
The cases dealing with the circumstances in which the Court will read “and” as “or” are not directly on point. However, they do provide some indirect assistance in that they suggest that even where that is the issue the Court will examine carefully the context in which the words appear.
There are few cases dealing with the circumstances in which the Court will read “and” as “and/or”. The issue was briefly considered by the House of Lords in John G Stein & Co Ltd v O’Hanlon [1965] AC 890. One of the issues before the House of Lords in that case concerned the proper interpretation of s 48 of the Mines and Quarries Act (UK) 1954. That section provided:
“(1)It shall be the duty of the manager of every mine to take, with respect to every road and working place in the mine, such steps by way of controlling movement of the strata in the mine and supporting the roof and sides of the road or working place as may be necessary for keeping the road or working place secure…
(2)It shall be the duty of the manager of every mine to take such steps as may be necessary for securing that he is at all material times in possession of all information relevant for determining the nature and extent of any steps which it is requisite for him to take in order to discharge efficiently the duty imposed on him by the foregoing subsection.”
Lord Reid said (at 904):
“The next difference from the old Act creates the real difficulty in this case. Under the old Act there is simply a general obligation to make secure: it would seem that the means for achieving that result were left to be determined in light of the circumstances of each case. But now the duty is specific: the manager must take ‘such steps by way of controlling movement of the strata in the mine and supporting the roof and sides … as may be necessary’. Here the word ‘and’ creates some difficulty. I am not at all clear as to what is meant by ‘controlling movement of the strata’ and no question about that has been raised in this case. But I cannot suppose that it was intended that in every case the manager must both attempt to control movement of the strata and provide support. I think that this must mean that he must either take steps both to control movement of the strata and provide support or take steps to do one or the other, as may be necessary in the circumstances. The symbol ‘and/or’ is not yet part of the English language.”
Lord Wilberforce referred to the issue in passing. His Lordship said (at 911):
“The contention of the pursuer is that subsection (1) imposes upon the manager the duty to take steps of the specific character mentioned, that is by way of controlling the strata and (which I take to include the meaning ‘or’) supporting the roof and sides and that no other steps will do. Certainly the form of the subsections suggest this result.”
In my opinion, for the reasons I have given, reference to the context and the purposes and objects of Part 8 (Divisions 1 and 2) as a whole indicate that the intention of Parliament is reflected by the adoption of the second interpretation. I respectfully agree with the observations (albeit obiter) of Cox J in B v M (1991) 161 LSJS 227 (at 231):
“In my opinion, the components of the definition of ‘suppression order’ in s.68 should be interpreted flexibly and disjunctively. I think a court has power to make an order that forbids the publication of only the name of a potential witness or that, while not forbidding the publication of the witness’s name, forbids the publication of other specified material that would tend to identify the witness. It would be open to a court to forbid the publication of only the address of a witness, say, or only his occupation. What the Act is really saying is that an order may be made that forbids the publication of such material as the court may specify that would tend to identify the person in whose favour the order is made, and that such material may take any one or more of a number of forms. The court may make a general suppression order which will pick up the whole of the language of para.(b), or it may select those enabling parts of the paragraph that are properly applicable to the case of the party or witness in question and fashion its order accordingly. That really means, I suppose, that one is interpreting the paragraph by giving the word ‘and’, in the expression ‘and any other material’, a disjunctive, not a conjunctive interpretation. An alternative construction is that any suppression order must include the name of the party or witness and that the effect of the concluding reference to ‘any other material’ will empower the court to specify such material, if any, additional to the name, the publication of which should fairly be suppressed. Such an order could be made in a specific way or in a general or allusive way. I prefer the view that the suppression of the name is not an essential component of a valid suppression order, but I do not need to decide the point in order to dispose of this appeal.”
I respectfully disagree with the conclusion of Perry J in Hann v Ankor (1996) (S5766 (unreported) 19 August 1996).
In my opinion, ground 1 of the appeal fails. In the circumstances it is unnecessary for me to consider the submission made by each respondent that in the alternative the inherent jurisdiction of the Court is a sufficient source of the power for the order made by the trial Judge.
The Giving of Reasons
I do not think there can be any doubt that the Judge was under an obligation to give reasons. That conclusion accords with general principle and is reinforced by the fact that rights of appeal are given (s 69A(8) and (9)) and that the report which must be sent to the Attorney-General when a Court makes a suppression order must include “full particulars of the reasons for which the order was made” (s 69A(10)).
The question is what is the extent of the obligation? It seems to me that that question cannot be answered in the abstract other than to say that reasons sufficient to indicate the basis upon which the order was made should be given. It is important to bear in mind that most orders made under s 69A are made immediately after submissions and without the opportunity to adjourn and prepare reasons. Furthermore, in a number of cases it will be fairly obvious why the order has been made and the reasons can be quite brief. In other cases, more will be required to meet the obligation to provide adequate reasons.
This Court considered the issue in State of South Australia v Carter and Myers (1991) 161 LSJS 325. Cox J (with whom King CJ and Debelle J agreed) said (at 328):
“In my opinion the learned judge should have indicated his reasons for refusing to make a suppression order. Just a sentence or two would have been enough; then the parties and the appeal Court would not have been left to speculate about what exactly the Judge had in mind. This Court has said more than once that suppression applications should be dealt with expeditiously and without unnecessary elaboration, and sometimes it will be obvious from the nature of the application what the reason for the court’s decision must have been. This, however, was not such a case. The learned Judge may have considered that the boy, especially in the light of what he had evidently told the Magistrate, would not suffer any hardship if his identity were disclosed, or he may have that (sic) thought there would be hardship but that it would not be undue, or that the publicity that was given at the time of the committal proceedings tipped the scales against the making of an order for the first time many months later, or that he should not make an order in this case that would have the practical result of suppressing the identities of the respondents as well, or he may have acted on a combination of those factors or, indeed, on some other undisclosed grounds. It was an error not to give reasons, however briefly, in the first place, and the error was compounded when counsel for the applicant expressly alluded to the matter the next day, and made it plain that there would be an appeal, and still no reasons were divulged.”
In my respectful opinion, the above passage contains an accurate statement of the law on this issue.
Conclusions
In my opinion all grounds of appeal fail. In the circumstances it is unnecessary for me to consider the application for a declaration that the trial Judge’s orders were void ab initio. Had it been necessary for me to determine that issue, I would have agreed with the reasons and conclusions of Lander J.
I would extend the time within which to appeal to 7 February 2003. I would dismiss the appeal.

[2003] SASC 234

31 July 2003