Civil Trials Bench Book — Preliminary

The principle of open justice is one of the most fundamental aspects of the system of justice in Australia and the conduct of proceedings in public is an essential quality of an Australian court of justice. There is no inherent power of the court to exclude the public: John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344 (CA) per Spigelman CJ at [18].

There are a number of statutory exceptions to this principle and the most significant of these are discussed at [1-0410], [1-0430] and [1-0440]. These exceptions can be divided into three broad groups: those conferring a power on a court to make suppression or non-publication orders in particular circumstances, those requiring or enabling the closing of a court and those that either require the making of an order for non-publication or prohibit publication of information.

The various statutory provisions protect the privacy interests of particular participants in the court system. Privacy interests are also the concern of the Supreme Court of New South Wales “Identity theft prevention and anonymisation policy” 2010 (accessed 2 August 2011), which provides guidance as to the publication of personal or private information in court judgments, and must be adhered to by a judge’s staff and the staff of the Reporting Services Branch.

It is generally desirable that consideration of whether orders should be made under any of the statutory provisions be dealt with at the outset of the proceedings, and, when a prohibition is to remain in force (as it often does) to advise everyone, including the entire jury panel, of the legal position.

The Court Suppression and Non-publication Orders Act 2010 commenced on 1 July 2011 and confers broad powers on courts to make suppression or non-publication orders: s 7. Such orders may be made at any time during proceedings or after proceedings have concluded: s 9(3).

The two types of orders are defined in s 3. A “non-publication order” prohibits or restricts the publication of information (but does not otherwise prohibit or restrict the disclosure of information), and a “suppression order” prohibits or restricts the disclosure of information (by publication or otherwise).

“Party” is broadly defined in s 3 and includes the (alleged) complainant or victim in criminal proceedings, and any person named in evidence given in proceedings.

Effect is given to the open justice principle in s 6 of the Act which requires a court deciding whether to make a suppression or non-publication order, to take into account that “a primary objective of the administration of justice is to safeguard the public interest in open justice”.

Section 6 should not impede the court from making an order when it is of the opinion that one of the grounds in s 8 is made out. Its importance will vary depending on the extent that any such order will interfere with the principle of open justice: Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at [9]. In DRJ v Commissioner of Victims Rights [2020] NSWCA 136, the Court of Appeal rejected a submission that this meant that the principle of open justice under s 6 does not need to be considered if one of the grounds in s 8 is established. The court held that first, s 6 imposes an obligation upon the court in unambiguous language, reinforcing the common law position and there is nothing in the language of s 8 to entitle a court to disregard that obligation. Second, s 8(1)(e) proceeds on the basis that the public interest in open justice is not disregarded, but rather, needs to be substantially outweighed if that paragraph is to be satisfied; see Misrachi v The Public Guardian [2019] NSWCA 67 at [11]. Third, s 12(2) requires the duration of an order to be limited “for no longer than is reasonably necessary to achieve the purpose for which it is made”. That limitation reflects the ongoing importance of safeguarding the public interest in open justice: DRJ v Commissioner of Victims Rights at [30], [33], [38].

In BUSB v R (2011) 209 A Crim R 390, which concerned the District Court’s power to make screening orders, Spigelman CJ confirmed that the implied powers of a court are directed to preserving its ability to perform its functions in the administration of justice: at [28]. The Court Suppression and Non-publication Orders Act 2010 does not limit or otherwise affect any inherent jurisdiction a court has to regulate its proceedings or deal with contempt of court: s 4.

Given the broad power conferred by the Act and given the myriad statutory provisions concerning the suppression or non-publication of material and the circumstances in which a court might be closed, it is difficult to determine what of the common law remains effective. The common law in relation to the open justice principle and the test of necessity will still inform the relevant parts of the Act.

The Court Suppression and Non-publication Orders Act 2010 does not limit the operation of a provision under any other Act permitting a court to make orders of this kind: s 5. The following provisions empower a court, in specified circumstances, to make suppression or non-publication orders. This list is not exhaustive.

Evidence (Audio and Audio Visual Links) Act 1998, s 15 empowers a “recognised court” to prohibit or restrict the publication of evidence given in the proceedings or the name of a party to or witness in the proceedings.

Surveillance Devices Act 2007, s 42(5)–(6) require a court to make an order prohibiting or restricting publication of information revealing details of surveillance device technology or methods of installation, use or retrieval of devices, unless the interests of justice otherwise require.

Evidence Act 1995, s 126E(b), in Pt 3.10 Div 1A entitled “Professional confidential relationship privilege” empowers a court to make suppression orders where the court forms the view such an order is necessary to protect the safety and welfare of a “protected confider” (defined in s 126A(1)). Given such an order constitutes a diminution of the operation of the principle that justice should be administered in open court, the justification for such an exception should be narrowly construed: Nagi v DPP [2009] NSWCCA 197 at [30].

Lie Detectors Act 1983, s 6(3) provides that a court may forbid publication of unlawfully obtained evidence from lie detectors.

In adoption information proceedings, the court or tribunal may make an order forbidding publication of all or any of the information mentioned in the proceedings relating to an adopted person, birth parent, adoptive parent, relative or other person: s 186(2) of the Adoption Act 2000.

The Supreme Court may order the non-publication of any report relating to the evidence or other proceedings or of any order made on an application for the appointment of a receiver under s 107(2) of the Conveyancers Licensing Act 2003. A similar power to make non-publication orders is conferred by s 140(2) of the Property and Stock Agents Act 2002 in relation to an application for the appointment of a receiver.

Other statutory provisions include:

A number of statutory provisions prohibit the publication of information in particular circumstances. Listed below are some examples of such provisions:

Court Security Act 2005, s 9A(1) provides that a person must not use any device to transmit sounds or images from a room or other place where a court is sitting to any person or place outside; by posting entries containing the sounds, images or information on social media sites or any other website or broadcasting or publishing by means of the Internet; or by making the sounds, images or information accessible to any person outside that room or other place. Note the exceptions in s 9A(2).

Pursuant to s 71 CPA, civil proceedings may be conducted in the absence of the public in certain circumstances, including where the presence of the public would defeat the ends of justice (s 71(b)), if the business does not involve the appearance before the court of any person (s 71(e)), or if the court thinks fit (s 71(f)). Other designate circumstances are outlined in s 71.

An order to close the court is considered a serious departure from the principle of open justice and should not be made if some less drastic mechanism, such as the use of pseudonyms or sealed envelopes would achieve the necessary purpose. Orders to close the court may be made subject to certain conditions.

An order to close the court to protect trade secrets or confidential commercial information may be valid in certain exceptional circumstances: R v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [1984] QB 227; David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294 per Street CJ at 307. The validity of the order was not really determined in that case, as the parties did not dispute that aspect of the earlier proceedings. However, on appeal, the request to close the court to protect confidential commercial information was refused. It was decided that the confidentiality could be maintained by avoiding detailed reference to the information during the appeal and other such strategies without having to close the court: David Syme & Co Ltd v General Motors-Holden’s Ltd per Street CJ at 296–297.

Legislation

Further references