Court of Appeal (Qld)|1993-02-15|Before: Lee J

J v L & A Services Pty Ltd (No 2) [1993] QCA 12 (15 February 1993)

IN THE COURT OF APPEAL [1993] QCA 012

The respondents to this appeal, a married couple with teenage children, have sued their employer and an associated group of medical practitioners for breach of contract of employment, negligence and breach of statutory duty. The defendants, together with the Workers' Compensation Board of Queensland, (the "appellants") have appealed to this Court against orders made in the Trial Division on 3 July 1992.

So far as presently material, those orders are as follows:

"1. The Plaintiff be at liberty to commence proceedings in this Honourable Court against L & A Services Pty. Ltd. and Drs. J.J. Sullivan N.J. Nicolaides and Partners ("the proceedings") so that the Plaintiff be not referred to therein by name, but by the reference "J";

2. All documents filed and served subsequently in the proceedings identify the Plaintiff by the reference "J", save for the jurat of the original of any affidavit required to be sworn by the Plaintiff.

3. The Plaintiff's solicitors serve upon each of the Defendants to the proceedings and upon the Workers Compensation Board of Queensland, at the time of service of the Writ -

(b) written notice of the name and address of the Plaintiff.

4. Except to the extent necessary for the preparation of the parties' cases and on the undertaking first obtained of the person to whom the matter is published not to republish the matter, publication be prohibited of or any report of:

(a) the commencement of the proceedings by the Plaintiff;

(d) the Statement of Claim or any subsequent documents in the proceedings, or any information derive [sic] therefrom;

(e) the hearing of any interlocutory process in the proceedings; or

(f) any other matter relating to these proceedings,

to the extent only that publication might tend to identify the Plaintiff or the name, address or occupation of the Plaintiff.

5. The affidavits and exhibits upon which this Application was based including the Affidavit of John Musgrave be placed in a sealed envelope only to be opened on the order of the Judge.

6. Any Application or Request under Order 87 of the Rules of the Supreme Court be referred to a Judge.

7. Nothing in this Order shall prevent the Defendants from providing information concerning the action, including the identity of the Plaintiff, to

(a) their present, past or prospective Insurers; and

8. That the Reasons for Decision herein be also placed in the said sealed envelope

AND LIBERTY IS GRANTED to the parties to use such Reasons for Decision and any other documents in such sealed envelope to the extent that may be necessary to bring any Appeal and for no further purpose.

9. The Orders numbered 2-8 have effect unless and until an order is made to the contrary."

Each of the respondents is a scientist employed as a technician in connection with a pathology practice. Their essential contention is that each acquired the human immuno-deficiency virus while taking and handling biological specimens and reagents in the course of their employment, or alternatively that one of the respondents acquired the virus in that manner and that his or her spouse did so through sexual intercourse. According to the respondents, as a result of the virus each is at risk of contracting AIDS and has suffered a loss of expectation of life.

The male respondent swore an affidavit containing the following paragraphs, and the female respondent swore an affidavit in substantially identical terms:

"9. That from my perception of community standards as a member of that community I verily believe that as a person who has been tested HIV positive that I might be ostracised within such community, suffer discrimination and have social situations made extremely difficult for both myself, my wife and my family should the fact of my said medical condition become known to members of the public other than my employer, the proposed Defendants and my medical and legal advisors.

10. That I am also concerned that there is a real likelihood of the proceedings receiving widespread media coverage if my identity becomes known.

11. That I am informed by my medical advisor Dr. Catherine May Downes and verily believe, that should my proposed litigation be exposed to publicity that the same may cause my general medical condition to be exacerbated by the stress associated with such exposure.

The respondents' general medical practitioner, Dr Downes, also swore affidavits in which she said it was likely that each respondent would "suffer great distress, prejudice or ostracism within the community" if it became publicly known that he or she "is a potential AIDS sufferer", and that each of the respondent's "general medical condition may be exacerbated by exposure to the stress which would be caused by exposure to publicity."

One of the partners in the pathology practice also swore an affidavit in which he referred to the nature and size of its very extensive operations. In all, about 1000 staff are employed, including 78 at the laboratory at which the respondents are employed along with 13 other technicians with "similar qualifications and standing". Paragraphs 8 to 12 of his affidavit were in the following terms:

"8. There is a considerable amount of hysteria surrounding the Human Immuno Deficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS).

9. I verily believe that media coverage will be attracted to the proposed litigation.

10. If the orders sought by the Claimants are made the public may gain the false impression that the Claimant is a member of the public who has become HIV positive as a result of having blood taken by the partnership or the company.

11. I am concerned that the hysteria surrounding the Virus and related illness is such that if the identity of the Claimants is not disclosed at the interlocutory stages of the proceedings (and before the full facts are known and can be tested and explained) the general public will, as a consequence of the false impression to which I have referred, be fearful and refrain from using the services of the company and partnership for blood collection and testing.

12. Further, the general public may be fearful and refrain from supplying blood tested in the fear (and I believe false belief) that there is a risk of infection through testing and I verily believe that such would be against the public interest. ...".

The primary judge made the orders reluctantly, out of deference to decisions by judges in other States which he considered supported such an approach. However, he indicated that he would otherwise not have allowed the application, and expressed concern at the possibility that there would be an increased practice of making such orders.

It may be said immediately that we do not think the orders should be upheld by this court on the basis of comity if they are not otherwise sustainable. There is, as yet, insufficient to warrant a conclusion that there is an established practice of prohibiting the identification of the identities of plaintiffs in such proceedings, and it has not been decided by an appellate court in Australia that it would ordinarily be proper to do so.

On this appeal, all parties accepted that court proceedings are ordinarily open to the public and may be the subject of fair and accurate reporting and discussion. It was also common ground that the openness of proceedings generally extends to access not only to hearings but also to court records in accordance with appropriate court rules. Further, it was acknowledged that usually these principles are not absolute, but that a court has the power to make exceptions. It was not suggested that the Supreme Court's inherent power had been relevantly restricted by statute or rules. The dispute for resolution on this appeal centres upon the nature and scope of the court's power and its proper exercise in the circumstances of this case.

The leading case is Scott v. Scott [1913] UKHL 2; (1913) AC 417, where it was held that an order that a nullity suit be heard in camera and that the details not subsequently be made public was wrongly made. The trial judge, whose decision had been affirmed by the Court of Appeal, had considered it sufficient that it was "desirable for the sake of public decency or morality that the hearing should take place in private", a test which had previously been applied in matrimonial proceedings by the Ecclesiastical Courts. This view was rejected by the House of Lords, which held that an order to exclude the public is permissible only when absolutely necessary, and not when merely expedient, to attain justice. There was, however, considerable divergence in the formulation of what restraints on openness are permissible and in the reasons given for the opinions which were expressed.

Different views are also to be found stated in more recent authority, with some indication that, in England at least, a superior court's extensive power to control its procedures permits restraints on openness in relation to particular aspects of court proceedings even where there is no justification for a general exclusion of the public.

In Attorney-General v. Leveller Magazine Ltd. (1979) A.C. 440, magistrates who were conducting committal proceedings in relation to offences under the Official Secrets Act made an order that an army officer who was a witness for the prosecution should be referred to as "Colonel B" and that his name should be written down and shown only to the court, the defendants and their counsel. Subsequently, during cross-examination, the witness gave information from which his identity could be ascertained and his name was published in three magazines. The Attorney-General brought proceedings to commit the publishers of the magazines and other persons responsible for their publication for contempt of court. The Divisional Court held the appellants guilty of contempt, but the House of Lords allowed an appeal. However, the course taken by the magistrates of allowing the witness to conceal his identity was upheld and, in the course of the judgments, opinions were expressed concerning the power of a court to sit in camera.

"As a general rule the English system of administering justice does require that it be done in public: Scott v. Scott [1913] UKHL 2; [1913] A.C. 417. If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the court itself it requires that they should be held in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this.

However, since the purpose of the general rule is to serve the ends of justice it may be necessary to depart from it where the nature or circumstances of the particular proceeding are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interest for whose protection Parliament has made some statutory derogation from the rule. Apart from statutory exceptions, however, where a court in the exercise of its inherent power to control the conduct of proceedings before it departs in any way from the general rule, the departure is justified to the extent and to no more than the extent that the court reasonably believes it to be necessary in order to serve the ends of justice. A familiar instance of this is provided by the "trial within a trial" as to the admissibility of a confession in a criminal prosecution. The due administration of justice requires that the jury should be unaware of what was the evidence adduced at the "trial within a trial" until after they have reached their verdict; but no greater derogation from the general rule as to the public nature of all proceedings at a criminal trial is justified than is necessary to ensure this. So far as proceedings in the courtroom are concerned the trial within a trial is held in open court in the presence of the press and public but in the absence of the jury. So far as publishing those proceedings outside the court is concerned any report of them which might come to the knowledge of the jury must be withheld until after they have reached their verdict; but it may be published after that. Only premature publication would constitute contempt of court."

"Proceedings in the courts of this country are normally conducted in public. The courts have, however, inherent jurisdiction to sit in camera if that is necessary for the due administration of justice: see Scott v. Scott [1913] UKHL 2; [1913] A.C. 417; Rex v. Governor of Lewes Prison, Ex parte Doyle (1917) 2 K.B. 254, per Lord Reading C.J., at p.271; Attorney-General v. Times Newspapers Ltd. [1974] A.C. 273, per Lord Reid, at p.294. In Scott v. Scott Lord Loreburn said, at p.446:

`... in all cases where the public has been excluded with admitted propriety the underlying principle, as it seems to me, is that the administration of justice would be rendered impracticable by their presence, whether because the case could not be effectively tried, or the parties entitled to justice would be reasonably deterred from seeking it at the hands of the court.'

It cannot be said that disclosure of "Colonel B's" name would have rendered the trial of the three accused impracticable, nor is it in my opinion the case that its disclosure would have reasonably deterred the Crown from instituting prosecutions for offences under the Official Secrets Act which ought in the national interest to be brought. The likely result if the magistrates had refused the application made by the Crown would have been an application that the court should sit in camera for his name to be given, the rest of his evidence being given in open court, and the likely consequence in future cases that there would be more applications for sittings in camera. So in the present case the administration of justice was not rendered impracticable on either of the two grounds mentioned by Lord Loreburn. Nor do I think that it can be said that the writing down of "Colonel B's" name involved less derogation from the open administration of justice than the giving of his name in camera with the rest of his evidence being given in open court.

If the criteria which apply in relation to the exercise of the court's inherent jurisdiction to sit in camera apply in relation to allowing or directing a witness to write down his name, then I do not think that those criteria are satisfied in this case; but I have come to the conclusion that they do not apply.

Judges and justices have a wide measure of control over the conduct of proceedings in their courts. On occasions for a variety of reasons witnesses are allowed to write down a piece of evidence instead of giving it orally and I know of a number of occasions when in Official Secrets Act cases witnesses have been allowed to conceal their identity. In my opinion it is within the jurisdiction of the court to allow this in the exercise of control over the conduct of the proceedings just as a judge is entitled to send a jury out in the course of a trial and to have a trial within a trial."

"It is beyond doubt that a court has a wide inherent jurisdiction to control its own procedure. In certain circumstances it may decide to sit wholly or in part in camera. Or witnesses may be ordered to withdraw, "lest they trim their evidence by hearing the evidence of others" (as Earl Loreburn put it in Scott v. Scott [1913] UKHL 2; [1913] A.C. 417, 446). Or part of a criminal trial may be ordered to take place in the absence of the jury, such as during the hearing of legal submissions or during a "trial within a trial" regarding the admissibility of an alleged confession. Or the court may direct that throughout the hearing in open court certain witnesses are to be referred to by letter or number only. But it does not follow that, were a person (and even one with knowledge of the procedure which had been adopted) thereafter to make public that which had been wholly or partially concealed, he would be ipso facto guilty of contempt. Nothing illustrates this more clearly than the hearing of evidence in camera,

"... it [being] plain that inherent jurisdiction exists in any court which enables it to exclude the public where it becomes necessary in order to administer justice." (Rex v. Governor of Lewes Prison, Ex parte Doyle [1917] 2 K.B. 254, per Viscount Reading C.J. at p.271)."

Lord Scarman, who took a more restricted view, said at pp.470-471:

"Examining justices also have the common law power, which belongs to all courts, to sit in private in the exceptional cases specified in Scott v. Scott [1913] UKHL 2; [1913] A.C. 417.

In Scott v. Scott your Lordships' House affirmed the general rule of the common law that justice must be administered in public. Certain exceptions were, however, recognised. The interest of national security was not one of them; indeed, it was not mentioned in any of the speeches. The House was divided as to whether protection of the administration of justice from interference was an exception. A majority held that it was - though their respective formulations of the exception differed markedly in emphasis. Earl Loreburn held the underlying principle to be that the public were to be excluded if "the administration of justice would be rendered impracticable in their presence" (p.446) Viscount Haldane L.C. thought that

"to justify an order for hearing in camera it must be shown" (my emphasis) "that the paramount object of securing that justice is done would really be rendered doubtful of attainment if the order were not made" (p.439).

Lord Halsbury - maxime dubitans (p.442) - agreed with the Lord Chancellor, while also, in effect, agreeing with Lord Shaw of Dunfermline who thought the ground put forward by the Lord Chancellor was "very dangerous ground" (p.485).

While paying heed to the dangers of extending this sensitive branch of the law by judicial decision, I think it plain that the basis of the modern law is as Viscount Haldane declared it was. It follows: (1) that, in the absence of express statutory provision (eg. section 8(4) of the Act of 1920), a court cannot sit in private merely because it believes that to sit in public would be prejudicial to national safety, (2) that, if the factor of national safety appears to endanger the due administration of justice, eg., by deterring the Crown from prosecuting in cases where it should do so, a court may sit in private, (3) that there must be material (not necessarily formally adduced evidence) made known to the court upon which it can reasonably reach its conclusion.

In the present case the justices, instead of sitting in private, adopted the device of allowing a piece of evidence to be written down and requiring it not be mentioned in open court. If they took this course in the interest of justice, they adopted what Lord Widgery C.J. described as a convenient device, for it achieved a result, i.e., no mention of the name in open court, which otherwise would only be achieved by the court going into camera. In other words, it was a substitute for sitting in private. I agree with Lord Widgery C.J. in believing this device to be a valuable and proper extension of the common law power to sit in private, and to be available where the court would have power at common law to sit in private but chooses not to do so. I think Reg v. Socialist Worker Printers and Publishers Ltd., Ex parte Attorney-General [1975] Q.B. 637 (a blackmail case) was correctly decided."

In R. v. Chief Registrar of Friendly Societies, Ex parte New Cross Building Society (1984) 1 QB 227, the Chief Registrar of Friendly Societies made a decision which effectively prevented the Society from accepting money for investment because, in the Chief Registrar's opinion, the Society had conducted its business imprudently. The Society applied for judicial review and the judge quashed the Chief Registrar's orders. An appeal by the Chief Registrar to the Court of Appeal was allowed. The whole of the proceedings before the Judge and the Court of Appeal up to and including the delivery of judgment were heard in camera. Although the order for the proceedings to be heard in camera was lifted when the appeal was allowed, the decision to proceed in private to that point was approved.

Sir John Donaldson MR, with whom Griffiths and Slade L.JJ. agreed, reformulated the test which he said was derived from Scott. At p.235 he said:

"It is fundamental to British justice as we know it, and as our forebears have known it, that the Queen's courts are open to all. And when I say that they are open to all, I do not limit this to those who have business in the courts. The judges administer justice in the Queen's name on behalf of the whole community. No one is more entitled than a member of the general public to see for himself that justice is done. Nevertheless it is well settled that occasions can arise when it becomes the duty of the court to close its doors.

This problem was considered in depth by the House of Lords in Scott v. Scott [1913] UKHL 2; [1913] A.C. 417. The guidance which I get from their Lordships' speeches can be summarised as follows. The general rule that the courts shall conduct their proceedings in public is but an aid, albeit a very important aid, to the achievement of the paramount object of the courts which is to do justice in accordance with the law. It is only if, in wholly exceptional circumstances, the presence of the public or public knowledge of the proceedings is likely to defeat that paramount object that the courts are justified in proceeding in camera. These circumstances are incapable of definition. Each application for privacy must be considered on its merits, but the applicant must satisfy the court that nothing short of total privacy will enable justice to be done. It is not sufficient that a public hearing will create embarrassment for some or all of those concerned. It must be shown that a public hearing is likely to lead, directly or indirectly, to a denial of justice.

The instant case provides a good example of such exceptional circumstances. When the matter came before Webster J., all that was known was that the chief registrar had made orders which would effectively cause the society to cease to carry on business and that the society challenged the validity of the orders. Assuming, as Webster J. has held, that the orders should never have been made, the society is entitled not only to have them quashed but to continue in business. However, the judge was told and accepted that if the society had to publicise the chief registrar's actions in the process of getting the orders quashed, the loss of public confidence in the society would be such that whether or not the orders were quashed, the society would be forced to close. In other words, a public hearing would effectively have deprived the society of the relief to which in law and justice it was or might be entitled. Accordingly, Webster J. was entirely justified in hearing the society's application in camera.

Before this court the position might be thought to be a little different. No longer was it simply the case that the registrar had made the orders and that the society was seeking to have them quashed. By that time a judge of the High Court had investigated the matter and had ordered that they be quashed. We therefore invited argument on why we should not hear the appeal in public or subject to an order under section 4(2) of the Contempt of Court Act 1981 that reports of the proceedings be postponed until after we had given judgment or subject to there being no reference to the identity of the society.

As a result of substantial argument, we were satisfied that it would be right to hear the appeal in camera. Building societies, like banks, are always subject to the risk of abnormal levels of withdrawal due to a loss of confidence upon the part of their customers. However, building societies are much more vulnerable than banks for by the very nature of their business they are compelled to borrow short and lend long. The society is convinced that public knowledge that the chief registrar had ever made these orders would be sufficient to force it to close, even if it were also known that Webster J. had held that the orders should never have been made. The society is even convinced that it could not survive publication of the fact that these proceedings had taken place, even if were known that it had been successful in this court as well as before Webster J.. The chief registrar was slightly more optimistic as to the society's chances of survival, but he agreed that very serious damage would be suffered by the society and that it might have to suspend payment for a time."

The views of Viscount Dilhorne in Attorney-General v. Leveller Magazine were broadly reflected in the same year by statements made by the Full Federal Court of Australia in R. v. Tait (1979) 46 FLR 386. In a joint judgment, Brennan, Deane and Gallop JJ. said at pp.401-405:

"In order that a court may accede to an application that it sit in camera, it must appear either that there is a statutory provision which enables it to do so, or that the case falls within one of the "strictly defined exceptions" (as Lord Blanesburgh described them in McPherson v. McPherson [1936] A.C. 177, at p.200), to the rule that the proceedings of courts of justice should be conducted "publicly and in open view" (Scott v. Scott [1913] UKHL 2; [1913] A.C. 417, at p.441). Apart from statute, a court has no discretion as to whether it sits in public or in private. That rule is as clearly established as it is essential to the preservation of confidence in the judicial system. In Dickason v. Dickason [1913] HCA 77; (1913) 17 C.L.R. 50 at p.51, Barton A.C.J., speaking with the concurrence of the other justices of the High Court, said:

"The matter appears to be concluded by the judgments of the Lords in Scott v. Scott, the effect of which is that there is no inherent power in a Court of justice to exclude the public, inasmuch as one of the normal attributes of a court is publicity, that is, the admission of the public to attend the proceedings. Power to exclude may be conferred expressly by law, but there is no law which empowers us to proceed otherwise than with the ordinary publicity of a Court of justice."

More recently, in Russell v. Russell (1976) 134 C.L.R. 495, the High Court has again affirmed that the public conduct of curial proceedings is a normal attribute of a court, and a provision which would have required the Supreme Courts of the States to exercise invested matrimonial jurisdiction in closed court was held invalid. Gibbs J. said: "It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted `publicly and in open view' (Scott v. Scott (supra.)). This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for `publicity is the authentic hall-mark of judicial as distinct from administrative procedure' (McPherson v. McPherson [1936] A.C. at p.200). To require a court invariably to sit in closed court is to alter the nature of the court. Of course there are established exceptions to the general rule that judicial proceedings shall be conducted in public; and the category of such exceptions is not closed to the Parliament. The need to maintain secrecy or confidentiality, or the interests of privacy or delicacy, may in some cases be thought to render it desirable for a matter, or part of it, to be held in closed court Russell v. Russell (supra) at p.520."

A judge cannot modify the common law rule which requires a court to administer justice in public. Apart from the strictly defined exceptions, "parliamentary sanction is required for the exclusion of the public from proceedings" (per Stephen J. in Russell v. Russell (supra) at p.533). In Scott v. Scott the reason for the common law rule and for denying a judicial discretion to modify it was eloquently expressed by Lord Shaw of Dunfermline who recalled Bentham's writings: " `Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.' `The security of securities is publicity'. But amongst historians the grave and enlightened verdict of Hallam, in which he ranks the publicity of judicial proceedings even higher than the rights of Parliament as a guarantee of public security, is not likely to be forgotten: `Civil liberty in this kingdom has two direct guarantees; the open administration of justice according to known laws truly interpreted, and fair constructions of evidence; and the right of Parliament, without let or interruption, to inquire into, and obtain redress of, public grievances. Of these, the first is by far the most indispensable; nor can the subjects of any State be reckoned to enjoy a real freedom, where this condition is not found both in its judicial institutions and in their constant exercise.'

"I myself should be very slow indeed (I shall speak of the exceptions hereafter) to throw any doubt upon this topic. The right of the citizen and the working of the Constitution in the sense which I have described have upon the whole since the fall of the Stuart dynasty received from the judiciary - and they appear to me still to demand of it - a constant and most watchful respect. There is no greater danger of usurpation than that which proceeds little by little, under cover of rules of procedure, and at the instance of judges themselves. I must say frankly that I think these encroachments have taken place by way of judicial procedure in such a way as, insensibly, at first, but now culminating in this decision most sensibly, to impair the rights, safety, and freedom of the citizen and the open administration of the law" [1913] A.C. at pp.477-478.

The Earl of Halsbury was concerned to deny the existence of non-statutory judicial discretion to sit in camera. He said: "... I wish to guard myself against the proposition that a judge may bring a case within the category of enforced secrecy because he thinks that justice cannot be done unless it is heard in secret. I do not deny it, because it is impossible to prove what cases might or might not be brought within that category, but I should require to have brought before me the concrete case before I could express an opinion upon it. Your Lordship has said that a mere desire to consider feelings of delicacy or to exclude from public hearing details which it would not be desirable to publish is not, in your Lordship's opinion, enough to prevent a public hearing, which must be insisted on in accordance with the rule which governs the general procedure in English Courts of justice, and that to justify an order for hearing in camera it must be shewn that the paramount object of securing that justice is done would really be rendered doubtful of attainment.

"The difficulty I have in accepting this as a sufficient exposition of the law is that the words in which your Lordship has laid down the rule are of such wide application that individual judges may apply them in a way that, in my opinion, the law does not warrant.

"I am not venturing to criticize your Lordship's language, which, as your Lordship understands it, and as I venture to say I myself understand it, is probably enough to secure the observance of the rule of public hearing, but what I venture to point out is that it is not so definite in its application but that an individual judge might think that, in his view, the paramount object could not be attained without a secret hearing. Although I am very far from saying that such a case may not arise, I hesitate to accede to the width of language, which, as I say, might be applied to what, in my view, would be an unlawful extension." [1913] A.C. at pp.442-443.

There is, however, an exception to the rule where the exercise of the court's jurisdiction would be defeated or frustrated if the proceedings were held in public. Thus, there is power to close the court to prevent its disruption by rioters (R. v. Governor of Lewes Prison; Ex parte Doyle [1917] 2 K.B. 254) or to protect a secret process which is the subject of the litigation. But this exception is a narrow one, and the suggestion of Earl Loreburn in Scott v. Scott that it also covers cases where by reason of publicity "parties entitled to justice would be reasonably deterred from seeking it at the hands of the court" [1913] A.C. at p.446 did not find acceptance by the other Lords (cf. Lord Shaw [1913] A.C. at p.484) and has not been followed since (B. (Orse P.) v. Attorney-General [1967] P. 119, at pp.123-124). The exception - limited to cases where the presence of the public would make the securing of justice "doubtful of attainment" - does not extend to cases where excluding the public would merely save a party or a witness from suffering a collateral disadvantage as the result of the publicity of the proceedings in which he is engaged or in which he is to give evidence.

The absence of a statutory power to exclude the public need not prevent the court from adopting other procedures which may give necessary confidentiality to information, while maintaining the public right of presence during the proceedings. Thus, a direction to conceal the names of witnesses (as in R. v. Socialist Worker Printers and Publishers Ltd.; Ex parte Attorney-General [1975] Q.B. 63) or the handing up of a document which is not to be read in public (as in Andrew v. Raeburn (1874) 9 Ch. App. 522) may provide adequate confidentiality where confidentiality is necessary, during proceedings which are open to the public. Even where a court is vested with a statutory discretion to exclude the public, it would ordinarily exercise that power only in cases where lesser procedures are clearly inadequate to give the confidentiality which is seen to be necessary."

The public nature of court proceedings was also discussed by the Federal Court in Australian Broadcasting Commission v. Parish (1980) 43 FLR 129; 29 ALR 228, and Tradestock Pty. Ltd. v. TNT (Management) Pty. Ltd. (1983) 50 ALR 461, although both decisions relevantly turned on section 50 of the Federal Court of Australia Act 1976 (Commonwealth), which permits an order forbidding or restricting the publication of particular evidence or the name of a party or a particular witness if it appears to the court "to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth". See also E. v. Australian Red Cross Society [1991] FCA 20; (1991) 99 ALR 601.

Recently, there has been extensive discussion of the topic of open justice in State courts. It has been the subject of reported decisions by appeal courts in both Queensland and New South Wales as well as unreported appellate decisions and decisions by single judges in a number of States: see, for example, Mirror Newspapers Ltd. v. Waller (1985) 1 NSWLR 1; Re A Former Officer of the Australian Security Intelligence Organisation [1987] VicRp 70; (1987) VR 875; and T.K. v. Australian Red Cross Society (1989) 1 WAR 335, in which the orders made were similar to those which are the subject of the present appeal. Orders to the same effect have been made in Victoria; see Re a Proposed Proceeding between "TC" as plaintiff v. Australian Red Cross Society as defendants (unreported, Young CJ, 4 August, 1989) and P.Q. v. Australian Red Cross Society [1992] VicRp 2; (1992) 1 VR 19.

Although such orders have not previously been made in Queensland, the Full Court discussed the nature of a court's power to limit public knowledge of its proceedings on two occasions in 1991.

In R. v. His Honour Judge Noud, Ex parte McNamara [1991] 2 Qd. R. 86, Williams J., with whom Demack J. agreed, referred to the subject at some length especially at pp.103-108.

In that case, a judge made orders at the commencement of a criminal trial effectively prohibiting identification of a witness who was the complainant in relation to charges of official corruption against two police officers. Although the Full Court quashed the orders, a distinction was drawn:

"Between holding proceedings in camera and holding proceedings in open court but with directions having the consequence of concealing the names of witnesses (with or without a further direction limiting publication of evidence) ...

... a judge faced with the question whether or not to direct that the name of a witness be withheld must balance the possibility of other witnesses coming forward if that evidence is given full publicity against the possibility of the evidence not being available and therefore justice not being done because of unnecessary media publication of some sordid facts which are of little value to persons outside the court room, except that their publication may have some temporary effect on media ratings." (at p.104)

While that passage suggests the exercise of a judicial discretion involving the balancing of the circumstances of the particular case, the following paragraph in the judgment discussed Scott, from which it was said clearly to emerge "that it is not merely a question of the exercise of discretion by the trial judge; the exercise of the jurisdiction to give a direction of the type in question gives rise to a question of principle which should only be implemented when it is necessary to do so in order to ensure that justice is done."

The position was then summarised in the following passage from pp.106-107:

"Thus it appears that the court should only depart from the basic principle that proceedings take place in public, and without any limitation thereon, if it is positively established to the court that without such direction justice could not be done because of the grave difficulty in having the witnesses come forward in cases of that type. That will frequently occur where the essential prosecution witness has a "secret" (to use Lord Widgery's term) which would of necessity have to be made public if that witness was to give in open court the evidence without which criminal conduct would go unpunished. That situation clearly arises where the charge is one of blackmail, but it will also (perhaps not infrequently) arise in cases of the type under consideration here. A person is vulnerable to official corruption if that person has a 'secret" which the official is able to exploit to his advantage; if the person did not have that vulnerability then he would not be an appropriate target for the crime."

Significant aspects of what was said in that case were described as obiter by a differently constituted Full Court in Rockett v. Smith, ex parte Smith (O.S.C. No. 30 of 1990; unreported; judgment delivered 21 March, 1991). In the latter case, the Full Court declined to overturn the decision of a magistrate who had directed that a number of witnesses might write down their names and addresses on paper to be handed to the magistrate and use pseudonyms during the hearing, but it was held that the magistrate had had no power to go further and order that any report made or published concerning the proceedings should not reveal the names or other identifying particulars of the witnesses. Reliance for both conclusions was based upon the decisions of the N.S.W. Court of Appeal in John Fairfax and Sons Ltd. v. Police Tribunal of N.S.W. (1986) 5 NSWLR 465, and Attorney-General (NSW) v. Mayas Pty. Ltd. (1988) 14 NSWLR 342, which have subsequently been re-considered by the New South Wales Court of Appeal in John Fairfax Group (Receivers and Managers Appointed) v. The Local Court of New South Wales (unreported judgment delivered 24 December 1991).

Significantly, all judges in Rockett treated the magistrate's directions, other than the general restraint upon publication of the witnesses' names, as involving a discretionary judgment on his part with which an appellate court had only a limited power to interfere.

Since the English Court of Appeal's decision in R. v. Chief Registrar of Building Societies, there have been at least five reported and two unreported decisions by the N.S.W. Court of Appeal, including those referred to in Rockett, in which there has been discussion of a court's power to exclude or limit public access or the publication of reports in relation to its proceedings. Although subsection 80(b) of the Supreme Court Act 1970 (NSW) empowers that court to exclude the public 'where the presence of the public will defeat the ends of justice', that provision has been interpreted by reference to the common law. Accordingly, the sometimes conflicting views which have been expressed in the New South Wales Court of Appeal provide the most extensive modern discussion of the principles which are material in the present proceeding.

In David Syme and Co. Ltd. v. General Motors-Holden's Ltd. (1984) 2 NSWLR 294, an application for an interlocutory injunction to restrain the publication of information claimed to be confidential was heard, without objection, in closed court. The primary judge granted the plaintiff interlocutory relief, including the following orders:

"6. ORDER that except for the purpose of a minute of these orders being settled, passed and entered, or for the purpose of enforcing these orders, or for the purpose of any application arising out of any alleged non-compliance with these orders, the same shall not, without the prior leave of a judge, be disclosed to any person or persons other than the parties and their respective officers and legal advisers;

7. DIRECT that the file copy of this judgment be placed in a sealed envelope, which said envelope shall not be opened except by the order or direction of a judge."

The defendant appealed and, initially, the plaintiff sought to have the appeal heard in closed court. However, the application was refused after it became apparent that the appeal could proceed in open court without any risk of injustice to either party provided that no reference was made to details of the information alleged to be confidential. The Court of Appeal (Street CJ, Hutley AP and Samuels JA) held that the orders set out above should not have been made in such wide terms.

"Courts do, and should continue to, strain to the utmost to hear proceedings in public. Any tendency to depart from this is to be resisted unless clearly required by the dictates of justice."

"So far as concerns the statement of reasons I should have thought that it would always be possible for them to be formulated in such general terms as would, in deference to the deeply rooted principle I have referred to earlier, convey an adequate account of the litigation and the reasons underlying the orders. Where it is absolutely necessary that the reasons incorporate confidential material, it is commonplace for that material to be identified by some neutral description and to be set out in a document directed to be sealed up with an appropriate endorsement and placed with the papers. Incorporation in this way by reference has been found an effective means of enabling a trial judge to canvass confidential material adequately while at the same time giving, as he is obliged to, a public account of the litigation and the reasons for his orders. Failure to adopt either this or some other course which would enable such a public account to be given will, in my view, almost invariably, if not invariably, amount to error on the part of the trial judge. The extent and the content of the public account may vary according to the particular case in hand. I repeat, however, that I find it difficult to conceive any case in which it is impossible to provide some statement by way of a public account of the proceedings and the reasons."

I turn finally to the non-disclosure of the terms of the order. Here again, I find it almost inconceivable to contemplate a case in which there should be a total black-out upon the terms of the order. Important as it is that proceedings and reasons should be heard and stated in public, it is even more important that the solemn formality of a curial order should be capable of publication. To admit to exceptions to this requirement is a far reaching step. It affects not merely the individual against whom the order may be made. The public itself has a right to know what orders are being made by courts and it is encumbent on judges so to formulate their orders as to give effect to this right. I conclude, accordingly, that in the present case the direction that the order be not disclosed was erroneous."

In Raybos Australia Pty. Ltd. v. Jones (1985) 2 NSWLR 47, the defendant in a proceeding for contempt was a solicitor. The New South Wales Court of Appeal refused his request for an order restraining the disclosure of his name and the name of his firm.

After discussion of the history of open administration of justice and the general rule as it was stated in Scott and reaffirmed in McPherson v. McPherson (1936) AC 177 and Russell v. Russell (1976) 134 CLR 495, Kirby P. referred to the common law's acceptance of certain exceptions and continued at p.55:

"These legislative developments and changes of court practice reflect an increased resolve on the part of the Parliament and the courts to defend the principle of the open administration of justice against the many, doubtless well-meaning, efforts to erode the principle because of the suggested operation of competing claims of privacy, confidentiality, security, delicacy or administrative efficiency.

The principles which support and justify the open doors of our courts likewise require that what passes in court should be capable of being reported. The entitlement to report to the public at large what is seen and heard in open court is a corollary of the access to the court of those members of the public who choose to attend."

Although doubting whether a court has the power to make an order, operating outside the court, which suppressed the publication of what was said in open court, his Honour found it unnecessary to decide that question because he was of the view that, if the power existed, it should not be exercised in that case. In the course of giving his reasons for that opinion, Kirby P. quoted from what was said by Lord Scarman in Harman v. Secretary of State for the Home Department (1983) 1 AC 280 at 316:

"... the common law by its recognition of the principle of open justice ensures that the public administration of justice will be subject to public scrutiny. Such scrutiny serves no purpose unless it is accompanied by the rights of free speech, ie. the right publicly to report, to discuss, to comment, to criticise, to impart and to receive ideas and information on the matters subject to scrutiny. Justice is done in public so that it may be discussed and criticised in public." (p.59)

Finally, at pp.59-60, his Honour rejected the harm which could be caused to individuals by publicity as a sufficient reason for the restraint which was sought. At p.60 he said:

"Widespread publicity, through the modern media of communications, may do great harm. Sometimes quite unjustifiable damage can be inflicted on individuals.

However that may be, a price must be paid for the open administration, particularly of criminal justice. The alternative, of secret trials, where important public rights may be in competition and individual liberty may be at risk is so unacceptable that courts of our tradition would tend to avoid the consequence."

Samuels JA assumed that the power to make the orders sought existed and, on that assumption, defined its scope by a reference to subsection 80(b) of the Supreme Court Act 1970 (New South Wales). At pp.61-62, he continued:

"If all these assumptions are made it is then necessary to decide whether publication, in the usual way, of the names in suit will defeat the ends of justice: that is to say, whether publication will defeat the very purpose to which the public conduct of a court's business is ordinarily deemed essential. The inquiry must start with the proposition, central to our notions of forensic procedure, that the courts customarily conduct their business in public in order that the integrity, fairness and efficiency of the system, and its administrators, may be maintained by its exposure to public scrutiny. One corollary is the freedom to publish to the public fair reports of the court's proceedings. I do not myself consider that much turns on the fact that the proceedings before us are for contempt of court, and are thus criminal in character. If it is of particular importance that criminal proceedings should be heard in public and fully reported, the reason is not, I think, because they, unlike, or to a greater extent than, civil proceedings involve the public interest in the proper administration of justice. All proceedings before all courts (properly so called) involve that public interest; and it is that public interest whose requirements inform the whole of the topic in debate. One cannot put the private interests of citizens in the balance against this or any other public (that is, the whole community's interest). The emphatic desirability of public scrutiny of criminal trials is due essentially to the need to protect the accused, whose liberty is, or often is, at stake, against prejudice or unfairness. In any event, in the present case the contempt alleged is of a rather special kind and the defendant, whose position must be protected with all the rigorous care which our law extends to an accused person, is indeed the party moving for the order for suppression.

In my opinion, assuming the test I have mentioned, it does not matter whether the proceedings are civil or criminal. The question in either case must be the same: and in the present case it is whether publication in the ordinary course of the identity of the defendant (and of certain of his associates) in the contempt proceedings would defeat the ends of justice. That is to say, would publication prevent (or perhaps seriously impede) the fair resolution of those proceedings according to law, which is what I take the ends of justice to require and the public interest in its due administration to demand?

The question must, I consider, be answered no. I can see no basis for a conclusion that publication will defeat the doing of justice. The President has pointed out, and I agree, that great material harm can be done and considerable distress caused to individuals by reports of their involvement, or alleged involvement, in dubious transactions giving rise to legal proceedings. It is, to my mind, essentially a complaint of this kind that informs Mr Jones' argument. But there is no remedy to be had at common law, and I am not prepared to ascribe so wide an ambit to the hypothetical power which I find myself exercising. As I have indicated detriment of the kind postulated is incapable of satisfying the required test; it does not, to my mind, destroy the ends of justice in the circumstances of the present case. "

"Against the view that the healthiest way of dealing with both civil and criminal court cases is in open court, two factors must be recognised as operating. Current legislative and executive opinion frequently go on a different footing. Judges need not be concerned about executive opinion, but are bound by statutory statements of parliamentary views. ...

The other factor is the obligation of courts to do justice in particular cases. In the past this Court has seen this obligation as giving courts full power to do whatever is necessary to achieve a just result in a case before it: see Ex parte Tubman: Re Lucas (1970) 72 SR (NSW) 555 especially at 569; 92 WN 520 esp at 532 and following per Asprey JA. Coupled with the statement of this power there is always the warning that it must be used with the most careful discretion.

So far as concerns those proceedings which are usually regarded as strictly judicial, of which the present case is an example, this Court has two sure sources of power to exclude the public from its proceedings; one is the inherent power just mentioned and the other is the Supreme Court Act 1970, s.80, which empowers the court to conduct its business in the absence of the public where the presence of the public will defeat the ends of justice.

It seems probable to me that the inherent power would enable the court to make orders that evidence and happenings in court in the presence of the public should not be publicised although my own opinion is that a case where it would be both practical and right to make such orders would be of the utmost rarity. However it is not necessary to decide in the present case whether the court's powers extend so far because if the court has the power, this was not a case where, in my opinion, either on my own perhaps too stringent view, or a more orthodox one, it should be exercised.

... . The case has unusual features but only in a sense that many cases have features special to themselves. There must be few defendants who like their names published along with the charges against them; many must feel themselves harmed by the publicity. The defendant in the present case was not to my mind in a sufficiently different position from that of the other defendants to make it right that his case be treated differently. Accordingly I joined in the decision to refuse his application."

In John Fairfax and Sons Ltd. v. Police Tribunal of New South Wales (1986) 5 NSWLR 465, an order was made by the Police Tribunal, in the course of a hearing of departmental charges against a police officer, that the name of a person alleged to be a police informer who was not a witness in the proceeding not be published "in reports of these proceedings nor in any material which would serve to identify him or his place of abode." The New South Wales Court of Appeal quashed the order.

Mahoney JA considered that the second part of the order, which restricted the publication of the name of the witness "in any material which would serve to identify him or his place of abode" was beyond power and that the remainder of the Police Tribunal's order was substantially ineffective to achieve its purpose so that the whole order should be quashed.

In the course of his judgment, his Honour expressed views with respect to the power of a superior court to control its proceedings. At pp.471-472 he said:

"A superior court has the power, and the duty, to secure that justice is done according to the law in respect of those seeking the exercise of its jurisdiction: see Scott v. Scott [1913] UKHL 2; [1913] AC 417 at 437 per Viscount Haldane LC.

The power of a court to achieve such a purpose is not, I think, narrowly circumscribed. What it may do is conditioned upon the necessity of the case, not upon matters of mere convenience: Scott v. Scott (at 438). It may, in my opinion, direct that the name be not disclosed to the court; it may direct that it be disclosed to the court but no other; and it may, in relation to the order which has been made, make such order or give such direction as may be necessary to secure that its purpose be achieved by, for example, directing that no publication be made of the name or of information which would disclose the identity of the person in relation to his involvement in the proceedings before the court. The relationship which must exist between the proceedings and the necessity of the case on the one hand and the order made will depend upon the circumstances of the case."

At p.476, McHugh JA, with whom Glass JA agreed, held that, although the Act by which it was constituted contained no specific power enabling the Police Tribunal to prohibit the publication of evidence taken before it, its order was not necessarily invalid for that reason. While it had no powers, jurisdictions or authorities other than those authorised by the Act and had none of the powers inherent in the courts of common law, it had the powers which were necessary to enable it to act effectively within the jurisdiction which it had been granted by the Act. "The source of this inherent jurisdiction is the implied authority conferred on the judiciary to uphold, protect and fulfil the judicial function by ensuring that justice is administered, both in a particular case and as a continuing process, according to law and in an effective manner: Jacob, `The Inherent Jurisdiction of the Court', Current Legal Problems (1970) 23 at 27-28." (p.476).

"The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient. When the court is an inferior court, the order must do no more than is "necessary to enable it to act effectively within" its jurisdiction. Courts have no general authority, however, to make orders binding people in their conduct outside the courtroom. Judicial power is concerned with the determination of disputes and the making of orders concerning existing rights, duties and liabilities of persons involved in proceedings before the courts. An order made in court is no doubt binding on the parties, the witnesses and other persons in the courtroom. But an order purporting to operate as a common rule and to bind people generally is an exercise of legislative - not judicial - power. Nevertheless, conduct outside the courtroom which deliberately frustrates the effect of an order made to enable a court to act effectively within its jurisdiction may constitute a contempt of court. But the conduct will be a contempt because the person involved has intentionally interfered with the proper administration of justice and not because he was bound by the order itself. I think that the above statement of the applicable principles is in accordance with the way in which this branch of the law has developed."

At pp.480-481, his Honour explained why the order had been wrongly made by the Police Tribunal. He said:

"This case is not comparable to a case like R. v. Clement where the purpose of the order was to protect the integrity of a number of trials on the one indictment. Nor is the case comparable to cases like R. v. Socialist Workers; Ex parte Attorney-General and Taylor v. Attorney-General where the order for anonymity had effect within the courtroom and the effect of the publications was to frustrate orders made for the regulation of the courts' business. At the time when the Tribunal made its order, no suggestion was made that Mr "X" would or might give evidence. Nor were we told that he had later given evidence in the proceedings. Ironically, if he had given evidence, he would apparently have denied that he was an informer.

The order in question was simply designed to protect a person who was not a party or witness from the perceived effects of evidence given publicly in the Tribunal. The order was not designed to protect Mr X as a witness before the Tribunal or to ensure that other evidence given before the Tribunal was not influenced by the allegation that Mr X was an informer. It was not designed to prevent the publication of evidence whose publication would destroy the object of the proceedings. It was not an order made in pursuance of a requirement of public policy or of a statutory provision. If the tribunal had jurisdiction to make this order, it must have jurisdiction to make an order protecting a stranger from the detrimental consequences of publishing any evidence given before it. That would be extending the jurisdiction of an inferior tribunal beyond anything ever previously suggested. The statements in the cases to which I have referred deny the power to the superior courts. It is not possible to grant it to tribunals with limited jurisdiction."

At p.481, McHugh JA also rejected an argument that the terms of the Act by which the Police Tribunal was constituted and by which it had power to exclude the public from its hearings supported the order. His Honour held that the right to publish a fair and accurate report of proceedings is a common law right of such significance that an intention to repeal or amend it would only be attributed to the legislature when the language of the statute was unmistakably clear. He then continued at pp.481-482

"... the publication of the reports of court proceedings made in good faith is not an actionable defamation. Without the publication of the reports of court proceedings, the public would be ignorant of the workings of the courts whose proceedings would inevitably become the subject of rumours, misunderstandings, exaggerations and falsehoods which are so often associated with secret decision making. The publication of fair and accurate reports of court proceedings is therefore vital to the proper working of an open and democratic society and to the maintenance of the public confidence in the administration of justice."

In Attorney-General for New South Wales v. Mayas Pty. Ltd. (1988) 14 NSWLR 342, the New South Wales Court of Appeal dismissed a proceeding for contempt brought against a reporter who had published the name of a complainant in relation to a sexual offence after a magistrate had made a non-publication order in the course of committal proceedings.

Mahoney JA found that the defendant did not know that the relevant order had been made and that, on the facts of the case, was not guilty of contempt irrespective of the validity or effect of the magistrates order. Nonetheless, he discussed those questions at considerable length at pp.345-349, where he said:

"There are two basic principles affecting proceedings in courts. Stated broadly they are: that the hearing of proceedings in a court - and, I think, of criminal proceedings in particular - should be open to the public; and that what takes place in those proceedings may be the subject of a fair and accurate report and of appropriate discussion. These two principles, while they are related, are distinct, in their operation and their rationale.

These principles are, of course, not absolute. They are subject to qualifications. In particular, they are subject to, as I shall describe it, the Scott qualification: see Scott v. Scott [1913] UKHL 2; [1913] AC 417. The basis of the Scott qualification has been discussed many times and it is not necessary for me to detail it. It has been referred to in the High Court: Russell v. Russell (1976) 134 CLR 495 at 520 per Gibbs J; in this Court: David Syme and Co. Ltd. v. General Motors-Holden's Ltd. [1984] 2 NSWLR 294 and Raybos Australia Pty. Ltd. v. Jones (1985) 2 NSWLR 47 at 52 per Kirby P; in the Federal Court of Australia: Australian Broadcasting Corporation v. Parish (1980) 43 FLR 129; 29 ALR 228; and in England in the House of Lords: Attorney-General v. Leveller Magazine Ltd. [1979] AC 440; and in the Privy Council: McPherson v. McPherson [1936] AC 177. Over-simplified, the Scott qualification authorises the court to depart from these principles if it is necessary to do so in order that justice be done in accordance with the law.

The Scott qualification, that is, the considerations on which it is based, can authorise both in camera and non-publication orders. Proceedings may be ordered to be held in private and some or all of the public excluded: this is what was in issue in the McPherson case. And it may prevent the publication of what took place: this was what was in issue in the Scott case . A non-publication order may be made for the purpose of making effective the exclusion of the public: this was what was discussed, for example, by Earl Loreburn in the Scott case. But it may also be made for other reasons. Thus, where proceedings are not held in camera, a non-publication order may be made to protect an informer: Cain v. Glass (No.2) (1985) 3 NSWLR 230 at 246 et seq and John Fairfax and Sons Ltd. v. Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 472. Non-publication may, I think, be ordered in blackmail cases: R v. Socialist Workers Printers and Publishers Ltd; Ex parte Attorney-General [1975] QB 637. Non-publication orders may, in my opinion, be made where necessary in the interests of national security. And, of course, the basis of what was done in the Attorney-General v. Leveller Magazine Ltd. case lay in the power of the magistrate in committal proceedings to make non-publication orders.

As I have indicated, sometimes the making of a non-publication order is justified because otherwise an in camera order would be ineffective and the purposes for which it was made would not be achieved. It is, I think, obvious that in some cases this may be so. The extent of the restrictions imposed by an in camera order, as such, is not free from doubt. It might be thought that, at least in some cases, the reasons why an in camera order can validly be made should lead the court to conclude that, by implication, the in camera order also restricts publication . But in England it has been said that an in camera order does not, as such, restrict the subsequent publication of what has taken place in the court: see the Scott case (at 483) and Halsbury's Laws of England, 4th ed., vol. 9, par.20(10) at 17. If this be so, then it would follow that in some but not all cases in which it is appropriate that an in camera order may be made, the considerations which made the in camera order appropriate would justify the making of a non-publication order: see, eg., the Scott case (at 447, 451)."

It is clear that there are limits upon the circumstances in which a court may make an in camera or non-publication orders. Thus, for example, it is not sufficient that a party will be embarrassed by disclosures in the proceedings or that his business affairs will be affected: see David Syme and Co. Ltd. v. General Motors-Holden's Ltd.. There are limits on the extent to which such orders may operate. Thus, publication may, in a particular case, be restricted only for a particular time or in relation to particular persons. And it was, I believe, ordinarily accepted until recently that, in criminal proceedings for sexual assault, the effect of the publicity surrounding the proceedings upon the person assaulted was not in general a reason for either an in camera or a non-publication order.

The extent of such limitations may not be fixed: it may be that "the interests of privacy or delicacy": Russell v. Russell (at 520) per Gibbs J.; may be given more effect now than in previous times. But it has not been argued in the present case that the order which the magistrate made would, under the general law, have been justified by the embarrassment apt to be caused to the lady in question.

Whether and to what extent a non-publication order may bind or otherwise affect non-parties is not a matter which has yet been finally determined in this State. The conceptual problems involved were referred to in the Attorney-General v. Leveller Magazine Ltd. case: [1979] AC 440 at 451 per Lord Diplock; John Fairfax and Sons Ltd. v. Police Tribunal of New South Wales (at 476-477) and Taylor v. Attorney-General [1975] 2 NZLR 675. An order made in excess of inherent jurisdiction will prima facie not bind persons who are not parties to the proceeding. But it may establish the course of justice by which the court is to proceed and determine the case before it, with the result that non-compliance with the order may constitute such an interference with the administration of justice in the case that there is a contempt."

At pp.357-358, McHugh JA., with whom Hope JA. agreed, rejected the proposition that if a court has the power to sit in camera "then there is power to take the lesser course of sitting in open court, but prohibiting publication of parts of the proceedings", a view which had been expressed by Brownie J. in Connors v. Stent (unreported judgment dated 22nd April, 1987). McHugh JA said:

"His Honour relied on what was said by Lord Diplock and Lord Scarman in Attorney-General v. Leveller Magazine Ltd. (at 451 and 472). But with great respect these passages do not support the proposition that Brownie J. expounded. In Attorney-General v. Leveller Magazine Ltd. magistrates in committal proceedings had ruled that a witness was to be referred to in Court as "Colonel B" and that his name was to be written down and only shown to the Court, counsel and the defendants. In that context Lords Diplock and Scarman expressed the view that, since the magistrates had the power to sit in camera, they were entitled to take the lesser course of requiring certain of the evidence to be heard only by those immediately connected with the proceedings and not by members of the public whether inside or outside the Court. However, if a court allows evidence to be given in open court, in the absence of statutory authority, it has no power to prevent the publication of that evidence. The cases of R. v. Socialist Worker Printers and Publishers Ltd.: Ex parte Attorney-General [1975] QB 637 at 651-652; R. v. Tait and Bartley (1979) 24 ALR 473 at 490; 46 FLR 386 at 405 and Connelly v. Director of Public Prosecutions [1964] AC 1254 at 1301, to which Brownie J. also referred do not support any wider proposition."

In United Telecasters Sydney Ltd. v. Hardy (1991) 23 NSWLR 323, it was held in contempt proceedings brought against the defendant that a District Court judge had no power to make an order prohibiting the defendant from telecasting certain material relating to a criminal trial which was then proceeding before him or to accept an undertaking to similar effect from the defendant. In the course of his judgment, Samuels AP, with whom Clarke and Meagher JJA agreed, referred to orders by a court prohibiting the publication of evidence taken before it in the context of discussing the nature of the order made by the District Court judge in that case. At pp.333-334, his Honour said:

"As I have indicated, I do not think it is necessary to muster the cases involving non-publication orders in support of the contention that this order was a nullity. The typical non-publication order seeks to protect the anonymity of a witness, an informer or a party to the proceedings. Orders have been sought to protect the anonymity of members of the secret service (Attorney-General v. Leveller Magazine Ltd.; Taylor v. Attorney-General [1975 2 NZLR 675); complainants in sexual offence cases (Attorney-General for New South Wales v. Mayas); police informers (Savvas v. The Queen (1989) 43 A Crim R 331; John Fairfax and Sons. Ltd. v. Police Tribunal of New South Wales), and parties to the proceedings (Raybos). Often the courts have declined to allow such orders which purport to bind the public at large since they inhibit the fair and accurate reporting of court proceedings, and because such orders in rem partake more of an exercise of legislative power than judicial power: John Fairfax and Sons. Ltd. v. Police Tribunal (at 476-477).

But the present case is not a case where the court has sought to protect Hardy's anonymity. The order was not directed to the world at large, but only to Network TEN. Further, the order was made after the jury had been empanelled and Hardy had been indicted in open court. His identity as the accused had thus already been disclosed in public. Even in the context of non-publication orders, there is authority for the proposition that the court has no power to restrain the publication of evidence, including a name, that has already been disclosed in open court: Attorney-General v. Leveller Magazine Ltd.; Attorney-General for New South Wales v. Mayas (at 358); Raybos (at 55); and John Fairfax and Sons. Ltd. v. District Court of New South Wales (Court of Appeal, 18 August 1988, unreported at 10 per Kirby P.). ... ."

It is proposed to pass over the unreported decision in John Fairfax and Sons Ltd. v. District Court of New South Wales (judgment 18 August 1988), and to conclude the references to the recent judgments of the New South Wales Court of Appeal with extracts from John Fairfax Group Pty. Ltd. (Receives and Managers appointed) v. The Local Court of New South Wales (unreported judgment delivered 24 December 1991).

In that case, it was held by a majority, Mahoney JA and Hope AJA with Kirby P. dissenting, that magistrates had, and had properly exercised, the power to make an order that the names of alleged victims of extortion be suppressed and that they be referred to by pseudonyms.

"The normal rule of our courts is that justice is administered in a court open to the public where the names of the parties are openly revealed and may be the subject of fair and accurate reports without fear of prosecution for contempt or action for defamation or other civil wrong. This rule, which we have inherited from the common law of England, has been described as an "inveterate" rule of our system of justice. See Earl Loreburn in Scott v. Scott [1913] UKHL 2; [1913] AC 417, 445 (HL). In this Court, it was described by McHugh JA as "the fundamental rule of the common law". See Police Tribunal Case (above) 476.

At common law the rule is not absolute, as the Law Lords were at pains to stress in Scott v. Scott and have done since both in the Privy Council (see eg. Mcpherson v. McPherson [1936] AC 177; [1936] 1 DLR 321) and in the House of Lords (see eg. Attorney-General v. Leveller Magazine Limited and Ors. [1979] AC 440). Exceptions have been allowed by the common law to protect police informers (see discussion Cain v. Glass (No.2) (1985) 3 NSWLR 230; 246ff; Police Tribunal case (above), 472); blackmail cases (see eg. R. v. Socialist Worker Printers and Publishers Ltd. and Anor., Ex parte Attorney-General [1975] QB 637, 649, 652) and cases involving national security (see A. v. Hayden (No.2) [1984] HCA 67; (1984) 156 CLR 532, 599; cf Re a Former Officer of the Australian Security Intelligence Organisation [1987] VicRp 70; [1987] VR 875,876; Taylor v. Attorney-General [1975] 2 NZLR 675 (CA)). The common justification for these special exceptions is a reminder that the open administration of justice serves the interests of society and is not an absolute end in itself. If the very openness of court proceedings would destroy the attainment of justice in the particular case (as by vindicating the activities of the blackmailer) or discourage its attainment in cases generally (as by frightening off blackmail victims or informers) or would derogate from even more urgent considerations of public interest (as by endangering national security) the rule of openness must be modified to meet the exigencies of the particular case. It is not suggested that the foregoing rules of the common law, expressed mainly in decisions of the English Courts, do not represent the common law of Australia. On the contrary, our courts have followed the common law principle faithfully. ...

It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded a reason for the closure of courts, or the issue of suppression orders in their various alternative forms. See eg. GMH Case (above) 307 Raybos v. Jones (above), 58; R v. Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [1984] QB 227, 235 (CCA); R v. Bromfield (above), Malcolm CJ, 22; Rockett v. Smith per Derrington J, at 7. A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise, powerful litigants may come to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported.

It is because of [sic] the principles of the open administration of justice and the facility of public reporting of the courts are so fundamental to the common law that exceptions must be clearly allowed by the common law itself or by statute, before courts will uphold them. ... .

This does not mean that the well known common law exceptions which permit the adoption of the "device" described in the Leveller litigation to protect police informers, blackmail victims and matters relevant to national security are cast in doubt. Nor does it mean that the categories of common law exceptions are forever closed. But for the present orders to be justified as a derogation from the principle of openness of magistrates' courts (required both by statute and common law) it would be necessary to bring the case within one of the exceptions long established or to show that a new exception must be created, in effect, for extortion cases.

Although Carruthers J. was prepared to call the offence charged in this case a "blackmail type" offence there was, with respect, no basis for doing so. No basis is disclosed in his Honour's reasons nor, in the course adopted, in the reasons of the magistrate. Allowing that this could be the result of an assessment of the unpublished letters which were read both by the magistrate and by his Honour, it is necessary for this Court to make its own assessment upon those letters. I will not pre-empt the contrary opinion by disclosing the terms of the letters. But it is proper to say that nothing in the letters has the ring of blackmail. Blackmail arises where both the extortioner and the victim share a guilty secret which the victim (to avoid shame, distress, embarrassment, hurt or other damage) wishes to be kept from the public or a section of the public. This is not a feature of extortion cases, as such. There, the victim is oppressed by the extortioner who threatens dire consequences. But those consequences are not the revelation to the public of a guilty secret. This difference removes one of the important inhibitions which exists in the case of blackmail (or police informers) against the revelation of facts in open court. If such revelation were required, out of deference to the principle of openness, the blackmail would have succeeded or, to avoid that risk, the victim and the informant would likely not come forward. Nothing of the same inhibition exists in cases of extortion.

It is true that other inhibitions do exist. Thus, the recent highly publicised cases of extortion on an alleged threat to include glass fragments in jars of baby food or cyanide in tubes of toothpaste doubtless caused great inconvenience to the victims. It may also have caused financial loss, as consumers changed brand names to avoid perceived risk. Cost would be involved in recalling products, testing them and publishing messages of reassurance. One can well understand the desire of the corporate "victims" of such extortions to avoid such publicity and to discourage the risk that it would provoke "copycat" imitations. But these are not, conventionally, reasons which have been accepted by our law as justifying the addition [of] one more inhibitor upon the open administration of justice and the free reporting of the doings of the courts, particularly criminal courts. On the contrary, it is normal for the victims of an extortion to be disclosed, in the usual way, in open court, reports of which are published in the media. See Reg v. Clear [1968] 1 QB 670; Austin v.The Queen (1989) 166 CLR 669.

Despite their otherwise most helpful, detailed and wide-ranging submissions, none of the respondents could point to a single case in any jurisdiction of the common law where the blackmail exception had been pushed forward to extend to cases of extortion. This fact itself would appear to provide a good reason for leaving any such extension to Parliament and for avoiding judicial legislation to enhance the powers of a magistrate to make orders inhibiting an important and traditional attribute of freedom. Necessarily, considerations which apply in the Supreme Court, with the large inherent powers referred to in Grassby, are quite different. The decision in this case involves no determination of the scope of the inherent power of a Supreme Court judge to adopt the expedient or to make orders suppressing the publication of evidence based upon the inherent power. I reserve that question to the future.

The other level for consideration is that of principle and policy. If the suggested fear said to warrant the power of magistrates as necessary to make such orders is "copycat" offences, they will not be restrained by the mere suppression of the names of the particular victims of one extortion. The orders will have to go much further. They will need to inhibit the public disclosure of still more material revealed in open court if the objective of stifling copying is to be achieved. Only an entirely in camera proceeding could ensure the attainment of that objective. In camera criminal proceedings are thoroughly undesirable. S.32 of the Justices Act would limit the power of a magistrate to order them.

Therefore, whilst the publicity of an extortion will undoubtedly have temporary detrimental consequences for victims, the speedy and successful prosecution of the perpetrator, which publicity of court proceedings will allow, may be a much surer inhibition to "copycat" offences and one more in keeping with the general open nature of our society.

Finally, it can be observed in this case (as it was by McPherson J. in Noud (above 97) that there was, in fact, no apparent difficulty in getting the complainants to "come forward" with their complaint of extortion. They may prefer not to have publicity of the case. But it is virtually unthinkable that such a desire would have inhibited their approach to police and the setting in train of the highly efficient procedures which led to the apprehension of the offender who has now pleaded guilty. With respect, the basic error both of the magistrate and of Carruthers J. was to assimilate this case to the "blackmail type". That error led to the false conclusion that a common law principle designed specifically for blackmail cases could be applied in this instance. In my respectful view, it could not. Deprived of the blackmail exception, no other basis in statute or common law could be identified to support the order which the magistrate made.

Not for a minute do I regard the adoption of the "expedient" of a pseudonym as an unimportant derogation from the general principle that our courts are open and the parties and witnesses who appear in them are subject to be scrutinized there and reported upon, including in the public media. In the Leveller Magazine case, in the House of Lords, Lord Scarman made it plain that the "device" of making no mention of a name in open court was to be seen as a valuable and proper extension of the common law power to sit in private, and to be available when the court would have the power at common law to sit in private but chooses not to do so.

... . The use of pseudonym initials, beyond cases clearly allowed and in courts having the power to order them, is a significant departure from the norm. It would be undesirable that powerful individuals, substantial corporations or particular witnesses promised anonymity by the authorities, could secure such orders without authority of law and then only for very substantial reasons. Cf David Hunt J. in Savvas at 339. In my opinion neither of these preconditions was present here. There was no authority of law. Nor were there substantial reasons. On the contrary, the law of the State as declared by this Court in the Police Tribunal Case and affirmed in Mayas forbad such an order. ... ."

"The power to make orders for concealment of the identity of persons has been exercised by superior courts in various circumstances. Reference was made to the general power which the superior courts have in this regard in John Fairfax and Sons Ltd. v. Police Tribunal of New South Wales (1986) 5 NSWLR 465 by McHugh JA, with whose judgment Glass JA agreed: at p.476-9; and by me: at 471-4. The power to make a pseudonym or analogous order has been exercised in relation to the identity of an informer: see generally Cain v. Glass (No.2) (1985) 3 NSWLR 230 at 246 et seq; in relation to blackmail: R v. Socialist Worker Printers and Publishers Ltd.: Ex parte Attorney-General (1975) QB 637; and in relation to matters of national security: Attorney-General v. Leveller Magazine Ltd. (1979) AC 440; Taylor v. Attorney-General (1975) 2 NZLR 675. Counsel were not able to refer the court to any case in which a pseudonym order was order was made in, as I shall describe them compendiously, extortion cases of the present kind. However, it was submitted for the prosecution interests that the considerations supporting the power to make pseudonym orders in blackmail, security and informer cases supported the power to make then in extortion cases.

There are, I think, similarities in the considerations seen as involved in cases of these kinds. They are not congruent. But, if the accepted wisdom be correct, the revealing of the names of the victims may cause both damage to them and mischief to the public; the concealment of them by pseudonym orders may avoid both. I shall refer subsequently to both of these and to the assumptions involved. It would, in my opinion, be unfortunate if the superior courts could not, by the making of pseudonym orders, safeguard those involved in extortion cases such as the present. I accept that they can.

But it does not follow that that power exists in an inferior court and, in particular, one dealing with function of the nature of committal proceedings. ... .

I would, with respect, adopt the test enunciated by McHugh JA in John Fairfax and Sons Ltd. v. Police Tribunal of New South Wales for determining what is to be implied in the present case. In that case, the court was considering the powers of a statutory tribunal, the Police Tribunal of New South Wales.

Subsequently, his Honour said that the principle of open justice required that "an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it": at 476-7. Reference was also made to the implication of powers in this way in Attorney-General for New South Wales v. Mayas Pty. Ltd. (1988) 14 NSWLR 342.

Therefore, in considering whether the power to make a pseudonym order of the present kind in an extortion case is, in the sense to which Dawson J. and McHugh JA have referred, a power impliedly granted to the Local Court, it is necessary to consider whether the making of a pseudonym order can in principle be "really necessary to secure the proper administration of justice in the proceedings" before a Local Court. ...

This leads to the consideration of what is meant by "necessary to secure the proper administration of justice" in this context. The phrase does not mean that if the relevant order is not made, the proceedings will not be able to continue. Plainly they can. If the name of an informer is not hidden under a pseudonym, the proceedings will go on: at least, the instant proceeding will.

And if the name of a security officer is revealed, the administration of justice or of the country will not collapse. The basis of the implication is that if the kind of order proposed is not made, the result will be - or at least will be assumed to be - that particular consequences will flow, that those consequences are unacceptable, and that therefore the power to make orders which will prevent them is to be implied as necessary to the proper function of the court. The kinds of consequences that, in this sense, will be seen as unacceptable may be gauged by those involved in the cases in which statutory courts have been accepted as having restrictive powers. Thus, there will be hardship on the informer or the security officer or the blackmail victim; the future supply of information from such persons will end or will be impeded; and it will be more difficult to obtain from such persons the evidence necessary to bring offenders before the courts and deal with them. It is not necessary to attempt to state exhaustively the considerations relevant in this regard: it is to considerations of this kind or of an analogous kind on which the principle stated by McHugh JA is based. It follows from this that pseudonym orders may be seen to be "really necessary to secure the proper administration of justice" in extortion cases of the present kind if, such an order is not made, results of this kind will follow or may be assumed to follow.

I come now to consider whether the consequences which will flow if the Local Court does not have the power to make pseudonym orders are consequences which make it "necessary to secure the proper administration of justice" that it have such power in such a case as present. The magistrate saw the consequences as being essentially the same as flow from the disclosure off the identify of a blackmail victim. Having considered his power to hear proceedings in camera, he said that: "... I base the order I did make purely on the factor that these were in the nature of blackmail cases ...". His Worship referred to the fact that unless the identity of the victim be protected, "... victims of blackmail would be deterred from seeking the protection of the courts. In all of its various forms the crime of blackmail threatens the safety of the victim, whether in reputation or livelihood or in some other way and often the mere disclosure of the victim's orders made as based upon the conclusion that the "type of offence makes it appropriate to seek to protect the identity of the victim."

If it be the fact that the failure to protect the identity of the victim in a case such as the present would have the same or relevantly similar effects to those produced by revealing the name of a blackmail person, then, in my opinion, it would be appropriate to regard the making of such orders as within the implied power of a Local Court. It is not, I think, in contest that a magistrate may, in proceedings in a Local Court, make an order to protect the identity of a person blackmailed: at least, in my opinion, it is clear that it may. A power of this general kind was exercised by a criminal trial court in R. v. Socialist Worker printers and Publishers Ltd.; Ex parte Attorney-General (1975) QB 637 and the existence of it was upheld generally in the House of Lords in Attorney-General v. Leveller Magazines Ltd. (1979) AC 440. In the latter case, magistrates hearing committal proceedings had made, inter alia, a pseudonym order: at 448. The making of the order there in question was dealt with in various ways in the separate speeches of their Lordships. But, in my respectful opinion, the decision of the House of Lords did not deny that the magistrates had such a power. Their Lordships were concerned to determine whether the order had been disobeyed.

It is therefore necessary to consider what are the consequences apt to flow if no pseudonym order can be made in an extortion case of the present kind and whether those consequences are sufficiently analogous to those of a blackmail case to warrant the conclusion that the Local Court should have such a power.

As I have indicated, it was put to the learned magistrate that, if the identity of the victims was revealed, there was apt to be others ("copycat situations") who would seek to extort money from these victims or from other potential victims, and that the investigation of the offences would be more difficult because of confusion between real and mischievous threats. And, I think, the possibility that victims would not approach or co-operate with the police authorities emerged in argument. These consequences, if they flowed from the disclosure of the victims' identity would, in my opinion be analogous to those in blackmail and similar cases and would be of sufficient seriousness in the context of the proceedings before the court to make the power to make pseudonym orders "necessary".

But it was suggested in argument for the media interests that there was no evidence that such consequences will flow in any extortion case and nothing to show that they would flow in the present cases. The submission was that it could not be concluded that such consequences would flow.

It has not been the practice of the courts to require evidence that the consequences conventionally attributed to, eg. the disclosure of names in blackmail, security or informer cases, will actually flow. The courts have inferred that they will. No doubt, if it were to be suggested in a particular case that they would not, that could be the subject of proof. The same position should, in my opinion, obtain in respect of extortion cases of the present kind: no reason has been suggested for a different approach.

But the arguments for Fairfax and ABC went further. They suggested that, even if it be accepted that pseudonym or other protective orders may be made in the case of informers, security officers and blackmailers, the circumstances in which they can be made should not be extended. They reiterated the importance of freedom of speech, the open conduct of the courts, and the like. And, I think, their arguments suggested that these values justified the consequences of revealing the names of the victims and the private and public harm apt to flow from it. They invoked these values to justify their claim to standing to oppose orders of the present kind.

The importance of these values is not in doubt: they stand high in the order of importance. But, in my respectful opinion, the reiteration of them does not solve the present issue. What is here in question is the damage which is done to individuals by, in this case, the free publication of court proceedings and how to deal with it.

Three things at least may be said about the open conduct of the courts. First, it can and does cause pain and loss to the individuals. Second, the open conduct of the courts is not an end in itself: the principle is adopted because it is seen as a means of achieving the fundamental end, the proper administration of justice. And, third, what is to be achieved is the proper administration of justice but with the least harm to those who, in the course of it, will have harm inflicted upon them. The issue in the present case is how this can be achieved.

The submissions made for the media interests in the present proceeding have been far reaching and, in deference to them, it is appropriate that I indicate why in this regard I do not accept them.

First, it is important to remember - because, in what is said about the open conduct of the courts, it appears sometimes to be forgotten - that the open conduct of the courts can cause great pain and loss to those touched by what is done and what is publicised. It is, in my opinion, the function of the law - and the obligation of the courts in administering it - to avoid such pain and loss to the extent that it is possible to do so. To the extent that this detriment to the individual is not avoided, the law is deficient and the courts have been less than fully effective.

Second, the assumption which, I think, sometimes emerges from what is urged for the open conduct of courts is that that principle is to be upheld and the right to publish is to be unrestricted notwithstanding that the individual suffers for it. If this assumption underlies the submissions made in the present proceedings, it is an assumption which I would not accept. As I have said, the principle that the courts are to be open and that the media may publish what is done in them is not an end in itself. The principle is adopted because it is judged to be the means by which other and more fundamental goods will be achieved. The power which the community gives to any person, whether he be in Parliament, an official in government, or a judge is to be exercised properly and accountably. And, it is believed, that will be achieved if the power is exercised, as in the present case, in open court and subject to full publicity.

But this is not an unalloyed panacea. Experience has shown that open courts and unrestricted media publicity produce bad as well as good consequences: the principle is adopted, not because it is an unalloyed panacea, but because it is the least worst method of securing the proper exercise of judicial power and accountability for it.

Third, it is for these reasons proper to consider whether in what way the open court principle can be maintained without unacceptable detriment to individuals and the proper administration of justice.

There is no simple rule which will achieve the proper accommodation of the control of judicial power and accountability for it on the one hand and the avoidance of personal and public harm on the other. The expedient of granting a discretion to every judge to balance the principle of open courts against the harm in the individual case has not been accepted. And the courts have, I think, been conscious that in this area, the acceptance of restrictions for good reasons is apt to lead to the imposition of them for bad. But there is a well accepted recognition by the courts that, where "necessary", the principle of open courts is to be qualified. "The Scott qualification": see the Mayas case at 345; is well established. It extends beyond the present contest of informers, security officers and blackmail victims to other cases where the open court principle has been seen as "necessary". The qualifications to be imposed "must be commensurate with the purpose for which the jurisdiction exists": Scott v. Scott [1913] UKHL 2; (1913) AC 417 at 448 per Earl Loreburn. It may extend, as in Scott v. Scott, to an order for the hearing of a proceedings in camera and even to a direction that the evidence be not published, within the bounds of what, where necessary, may be done.

I come therefore to the question whether the learned magistrate should have made the pseudonym orders in the present case.

The fact that a pseudonym order can be made in extortion cases of the present kind does not, of course, mean that they must be made. The circumstances must warrant the making of such orders in the individual case. In this case, the magistrate had been acquainted with the nature of extortion threats made and had an opportunity to assess the likely consequence of publicising the identity of the victims. He was entitled to take into account the consequences of not making the orders. He was, in my opinion, entitled to take into account the damage which would be done if the extortionist or a "copycat" put into effect the threats that were made. He was entitled to take into account the publicity apt to flow if the orders were not made and the nature of it. It has sometimes been suggested that, in this regard, a court is entitled to take into account the likelihood that what is published will be sensational or inaccurate and likely, because of that, to increase the harm done. It is not necessary to consider that matter in the present case.

The magistrate chose to impose only a limited restriction. In my opinion, what he did did not go beyond what was warranted by the circumstances of the case.

HOPE A-JA said" I agree with the order proposed by Mahoney JA and with his reasons.

I would add that I do not think that my concurrence with Mahoney JA in this case is inconsistent with my concurrence with McHugh JA in Attorney-General for New South Wales v. Mayas Pty. Ltd. (1988) in NSWLR 342. Mayas was concerned with a charge of contempt. It was not in any way concerned with locus standi. On the question of power, it concerned an order prohibiting the publication of evidence given in court. For reasons given by Mahoney JA, the subject order did not prohibit the publication of any evidence given in open court. No doubt the distinction is a fine one, but in my opinion it is a valid one."

Finally, reference should be made to a passage in the judgment in Re a Former Officer of the Australian Security Intelligence Organization [1987] VicRp 70; (1987) VR 875 at 876-877, which was accepted as an accurate summary of the common law position by Malcolm CJ in TK v. Australian Red Cross Society (1989) 1 WAR 335, 337. In the former case, Brooking J. said:

"Quite apart from the statutory power to prohibit publication of a report of proceedings or to exclude persons from the court during the proceedings (see for example Supreme Court Act 1958 (Vic.),s .29), it is clear that there is inherent power to impinge by order in a given case upon the general principle that the courts shall conduct their proceedings in public. The impingement may be great or small, as circumstances warrant. At times the encroachment is so slight as to pass without notice: a witness is permitted to write down his address, which is then recorded in the transcript or sometimes only in the judges' notes, in the latter case the address being communicated privately to the judge alone. On occasions, a witness is permitted to go further and to write down not merely his address but also his name, so that he will give evidence as 'Mr X" or "Col B": R. v. Socialist Worker Printers and Publishers Ltd.; Ex parte Attorney-General [1975] QB 637; Taylor v. Attorney-General [1975] 2 NZLR 675; Attorney-General v. Leveller Magazine Ltd. [1979] AC 440; cf the discussion of Shaw v. Director of Public Prosecutions [1961] UKHL 1; [1962] AC 220 in J.F. Archbold, Pleading, Evidence and Practice in Criminal Cases (42nd ed., 1985) par 4-291. In exceptional circumstances, the whole or part of the hearing may take place in private. Courts have been induced to hear adversarial proceedings in private where confidential information has been disclosed by the plaintiff to the defendant (Mellor v. Thompson (1885) 31 Ch D 55), where a secret chemical process is set up (Badische Anilin und Soda Fabrik v. Levinstein (1883) 24 Ch D 156), where loss of public confidence, though unjustified, would cause a run on the bank (R v. Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [1984] QB 227) and where the court is asked to stop publication of material that would prejudice a fair trial; Skope Enterprises Ltd. v. Consumer Council [1973] 2 NZLR 399.

As to whether a court may sit in private simply on the ground that national security requires secrecy as opposed to considering whether the due administration of justice requires it, see R. v. Governor of Lewes Prison; Ex parte Doyle [1971] 2 KB 254; Norman v. Matthews [1916] WN 78 at 133; Taylor v. Attorney-General (supra); Attorney-General v. Leveller Magazine Ltd. (supra); Australian Broadcasting Commission v. Parish (1980) 43 FLR 129; A. v. Hayden (No.2) [1984] HCA 67; (1984) 156 CLR 532 at 541 per Gibbs CJ and 599 per Deane J.. It has been said that the circumstances which warrant a private hearing are incapable of definition (R. v. Chief Registrar of Friendly Societies; Ex parte New Cross Building Society (supra) at 235), but there seems still be uncertainty as to whether the inherent power to hear cases in private exists only in certain well-defined cases: Russell v. Russell (1976) 134 CLR 495 at 533 per Stephen J.; R. v. Tait (1979) 46 FLR 386; Attorney-General v. Leveller Magazine Ltd. (supra); Australian Broadcasting Commission v. Parish (supra)."

In the same case at p.878, his Honour referred to a distinction drawn by the Master of the Rolls in the New Cross Building Society case between a court closing its doors and closing its books, ie., merely restricting scrutiny of court papers.

This citation of authority at unusual length has been undertaken to demonstrate the diversity of the views which have recently been expressed despite the consistent emphasis upon the fundamental importance of open justice. The quotation of such extensive passages from recent authoritative decisions also provides a suitable context for the performance of this Court's task. While there is a marked judicial reluctance to determine social policies and a preference for leaving that function to the elected legislature and for confining the role of the courts to the determination of disputes by the application of the law in accordance with what is just between the particular parties, courts, especially appeal courts, cannot entirely avoid policy issues. At least some legal principles are based on judicial determinations of the public interest or, in some instances, the correct balance between competing public interests, and may appropriately evolve with experience or as social conditions change. See generally, McHugh J. "The Law-making Function of the Judicial Process, Part II", (1988) 62 ALJ 116, 120. On the other hand, courts usually do not have the resources, facilities or information to ascertain the correct balance between complex competing interests and, as in the present matter, one vitally interested party, the general public, is unrepresented. No provision exists for the government to intervene and provide the court with material and submissions concerning where the balance should be struck. Significantly, the Australian Law Reform Commission Report on Privacy (No.22, 1983) recognised at p.963 that recommendations with respect to excluding the public from judicial proceedings require detailed research.

There is no directly relevant statement of the Queensland Parliament's intentions with respect to the subject of open justice. Australia is a party to the International Convention on Civil and Political Rights which, by article 14(1), recognises that open justice may properly be made subject to exceptions in limited circumstances including the protection of individual privacy but no guidelines emerge. The Commonwealth has enacted legislation with respect to some of its courts (Federal Court of Australia Act 1976, section 50; Family Law Act 1975, sections 97 and 121), and some States (eg. NSW) also have legislated, but there is no Queensland statute which regulates the approach of the Supreme Court, which is left to determine its procedure in accordance with the common law.

Against this background, it is convenient first to state the principles to be applied in the Supreme Court subject to any statutory provision to the contrary in particular circumstances.

1. Although there is a public interest in avoiding or minimising disadvantages to private citizens from public activities, paramount public interests in the due administration of justice, freedom of speech, a free media and an open society require that court proceedings be open to the public and able to be reported and discussed publicly.

2. The public may be excluded and publicity prohibited when public access or publicity would frustrate the purpose of a court proceeding by preventing the effective enforcement of some substantive law and depriving the court's decision of practical utility. National security provides a further special, broadly analogous exception to the requirement of open justice because of its fundamental importance to the preservation of a democratic society based on the rule of law. 3. The permitted exceptions to the requirement of open justice are not based upon the premise that parties would be reasonably deterred from bringing court proceedings by an apprehension that public access or publicity would deprive the proceeding of practical utility, but upon the actual loss of utility which would occur, and the exceptions do not extend to proceedings which parties would be reasonably deterred from bringing if the utility of the proceedings would not be affected. Courts do not have access to the information needed to determine whether or not parties are reasonably deterred by openness or publicity from bringing particular kinds of proceedings; for example, sexual complaints. Legislatures are better equipped than courts to make informed decisions on such matters.

4. No unnecessary restriction upon public access or publicity in respect of court proceedings is permissible.

5. Different degrees of restraint are permissible for different purposes. Although the categories tend to coalesce, they are broadly as follows:

(a) Exclusion of the public or a substantive restraint upon publicity is not permissible unless abstractly essential to the practical utility of a proceeding; for example, prosecutions for blackmail or proceedings for the legitimate protection of confidential information: cf. R v. Chief Registrar of Building Societies, ex parte Newcross Building Society.

(b) A limited exclusion or restraint is permissible if necessary to ensure that a proceeding is fair; for example, witnesses may be required to absent themselves from hearings, parts of jury trials may take place in the absence of the jury and limited or temporary restrictions on publicity may be imposed during the course of jury proceedings.

(c) An incidental, procedural restriction is permissible if necessary in the interests of a party or witness in a particular proceeding; for example, identities of witnesses or details of particular activities which are not directly material such as engaging in covert law enforcement operations or providing information to police may be suppressed.

6. It is the last category which gives rise to the most difficulty because of unresolved questions concerning the nature and ambit of the power. Support for a more liberal approach seems substantially confined to modern authority. Even so, information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm, or other "collateral disadvantage", to use the expression adopted in R. v. Tait. Additionally, when it is the interests of a party or a witness which is relied on as the basis for a proposed restraint, those considerations must be balanced against other factors, including the interests of others involved in the proceeding and others who may be affected. Open justice is non-discriminatory, whereas exceptions to the principle of open justice deny equal rights to the disputing litigants and provide a benefit to some litigants which is unavailable to members of the general public. Further, public scrutiny is a strong disincentive to false allegations and a powerful incentive to honest evidence, and publicity may attract the attention of persons with material information who are unaware of the proceeding. Again, as was pointed out by McHugh JA in John Fairfax and Sons Ltd. v. Police Tribunal of New South Wales, if information is suppressed "proceedings would inevitably become the subject of rumours, misunderstandings, exaggerations and falsehoods ... ": cf. Raybos Australia Pty. Ltd. v. Jones at p.59 per Kirby P., citing McPherson J. in ex parte The Queensland Law Society Incorporated (1984) 1 Qd. R. 166, 171. A particularly unsatisfactory manifestation of this difficulty occurs when uncertainty as to the particular person concerned leads to speculation concerning other members of a relevant group. Finally, it is important to remember that what appears to be a more liberal approach involving the exercise of a discretionary power in the interests of an individual involves an erosion of fundamental rights and freedoms of the general public. The occasional misuse or abuse of these rights and freedoms or other disadvantages associated with public information and discussion, which is sometimes misinformed, together with any resultant harm are part of the cost of living in a free, democratic society. It is common for sensitive issues to be litigated and for information which is extremely personal or confidential to be disclosed. It is of obvious concern that such a paramount principle as the requirement of open justice should not be whittled away on a case by case basis according to individual judges' subjective views of the merits or demerits of the claims to privacy of individual litigants. It is also of concern that there should not be an expenditure of time, resources and costs on arguments that do not bear directly on the merits of disputes.

The proceedings commenced by the present respondents will almost certainly be held in public and be able to be publicly reported and discussed. There is no basis for a conclusion that the proceedings would be deprived of practical utility unless the public was excluded or publicity was forbidden. Further, no restraint upon public access or publicity is needed for the purpose of a fair trial. If there is to be any restriction, it must be entirely grounded upon the interests of the respondents and must be called for notwithstanding that the proceedings generally will be open and the subject of publicity. The question is whether, nonetheless, the identities of the respondents, as plaintiffs, should be suppressed.

Apart from possible health consequences from stress associated with publicity, the request for suppression is based solely upon social disadvantages which might flow to the respondents and members of their family if their medical conditions became known. Neither stress and its potentially adverse effects nor the prospects of social harm differentiates the respondents from others who have legitimate cause to wish to avoid publicity. If any distinction is to be made, it must be because of matters associated with the respondents' particular disease.

We have given anxious consideration to this question and have searched for any indication of a legislative intention that privacy should be accorded to persons such as a respondents in these circumstances. Legislative trends in the jurisdiction can provide an important guide to the public interest: McHugh J. "The Law-making Function of the Judicial Process", p.116.

Both the Commonwealth and Queensland have legislated with respect to privacy (Privacy Act 1988 (Commonwealth); Invasion of Privacy Act 1981 (Qld)) and the prevention of discrimination (Disability Discrimination Act 1992 (Commonwealth) and Anti-Discrimination Act 1991 (Queensland)). See also the Human Rights and Equal Opportunity Act 1986 (Commonwealth), the Health Act 1937 (Queensland) and the Health Rights Commission Act 1991 (Queensland). Although in camera proceedings and non-publication orders were recommended in discussion papers, the report of the Privacy and HIV/AIDS Working Party and the Final Report of the Legal Working Party of the Intergovernmental Committee on HIV/AIDS on the basis that the stigma of HIV/AIDS and its effect on an individual's social and economic status justify overriding the imperative of open justice, detailed reasons were not given and the recommendations are not reflected in legislation to that effect. The public interest in preserving individual privacy is affirmed only to a limited extent by provisions for non-publication orders in some circumstances which do not extend to judicial proceedings except in limited cases which are not here applicable. Subject to that qualification, the legislation has left the common law to continue to operate with respect to HIV/AIDS sufferers in the courts.

J v L & A Services Pty Ltd

At a glance

Court

Decision date

Before

Source

Judgment (234 paragraphs)

J v L & A Services Pty Ltd (No 2) [1993] QCA 12 (15 February 1993)

Parties

Legislation Cited (10)

Cases Cited (17)