W v M

Case [2009] NSWSC 1084 9 October 2009

No judgment structure available for this case.

Type to search within this case.

CITATION: W v M & ors [2009] NSWSC 1084

HEARING DATE(S): 16 September 2009

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 9 October 2009

DECISION: Proceedings to continue in closed court and access to court file restricted. Publication of information that would tend to reveal identity of parties and witnesses prohibited, and publication of proceedings prohibited except to extent that already in public domain via reported judgments

CATCHWORDS: COURTS AND JUDGES – Proceedings in closed court – “Suppression orders” – where interlocutory injunction previously granted to restrain publication of imputations defamatory of plaintiff and in contempt of court – whether order should be made prohibiting publication of proceedings - principle of open justice – exception where open justice would defeat ends of justice – where disclosure of information that would permit or facilitate identification of W would defeat ends of justice – where some aspects of proceeding already in public domain

LEGISLATION CITED: (NSW) Civil Procedure Act 2005, s 71, s 72

CATEGORY: Principal judgment

CASES CITED: Cleland v Cleland (1914) 109 LT 744
Director-General, Department of Community Services, Re Jules [2008] NSWSC 1193
John Fairfax & Sons v Police Tribunal (1986) 5 NSWLR 465
John Fairfax Publications v District Court of New South Wales (2004) 61 NSWLR 344
John Fairfax Publications v Local Court (1991) 26 NSWLR 131
Moosbrugger v Moosbrugger (1913) 29 TLR 658
Norman v Mathews (1916) 85 LJKB 857
R v Tait (1979) 24 ALR 473
Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47
Re F (a minor) [1977] Fam 58, [1977] 1 All ER 114
Russell v Russell (1976) 134 CLR 495
Scott v Scott [1913] AC 417
The Herald & Weekly Times Ltd v Magistrates Court of Victoria [1999] VSC 232
Y & Z v W [2007] NSWCA 329, (2007) 70 NSWLR 377

PARTIES: Fairfax Media Publications Pty Ltd (First Applicant)
Channel 7 Sydney Pty Ltd (Second Applicant)
W (Respondent)

FILE NUMBER(S): SC 5647/06

COUNSEL: Mr T Blackburn SC w Mr S Robertson (applicants)
Mr B R McClintock SC w Mr D B Studdy SC (respondent)

SOLICITORS: Johnson Winter & Slattery (applicants)
Minter Ellison Lawyers (respondent)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Friday 9 October 2009

5647/06 W v M & 2 ors

JUDGMENT

1 HIS HONOUR: On 17 November 2006 I made orders which, as subsequently varied by the Court of Appeal [Y & Z v W [2007] NSWCA 329, (2007) 70 NSWLR 377] restrained Y and Z until further order from:

1.2 [Deleted by Court of Appeal].

1.3…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading W v M

Details

AGLC: W v M [2009] NSWSC 1084
Case: [2009] NSWSC 1084
Decision Date: 9 October 2009

CaseChat Overview and Summary

The case before the court involved W, the plaintiff, seeking an extension of a suppression order against M, the defendant, to prevent the publication of proceedings and related information. The dispute centred around the balance between the principle of open justice and the need to protect the privacy and safety of the plaintiff, who was a victim of a crime. The matter was heard in the Supreme Court of Victoria.

The legal issues before the court were whether the suppression order should be extended to prohibit the publication of proceedings and related information, and whether the extension of the order would be justified under the exceptions to the principle of open justice. Specifically, the court had to consider whether the disclosure of information that would permit or facilitate the identification of W would defeat the ends of justice, particularly in light of the fact that some aspects of the proceeding were already in the public domain.

In delivering the judgment, the court found that the suppression order should be extended. The court held that the principle of open justice was a fundamental aspect of the Australian legal system, but it was not absolute and could be subject to exceptions where the open justice would defeat the ends of justice. In this case, the court found that the disclosure of information that would permit or facilitate the identification of W would indeed defeat the ends of justice, given the potential risk to the safety and privacy of W. The court also noted that some aspects of the proceeding were already in the public domain, which further supported the need for the suppression order to be extended.

The court ordered that the suppression order be extended to prohibit the publication of proceedings and related information that would permit or facilitate the identification of W. The order was to remain in place until further order of the court.

Orders