Commissioner of Police v Attorney General for New South Wales [2022] NSWSC 595

Supreme Court New South Wales

Medium Neutral Citation: Commissioner of Police v Attorney General for New South Wales [2022] NSWSC 595 Hearing dates: 14 April 2022 and 16, 24 and 27 May 2022 Date of orders: 16 May 2022 and 27 May 2022 Decision date: 31 May 2022 Jurisdiction: Common Law Before: Wright J Decision: 1 An order in the nature of certiorari setting aside: a. so much of order 7(d)-(e) made on 1 February 2022 as concerns orders 3, 4, 5 and 6 made on the same day; b. orders 8, 9, 14(d)-(e) and 14A made on 1 February 2022; c. so much of order 29 made on 1 February 2022 as it relates to the Plaintiff's claims for public interest immunity in respect of the contested information identified in the red cells in Confidential Schedules A and B to these orders; and quashing the decision of the Second Defendant made on 17 December 2021 to the extent that it is reflected in those orders. 2 An order in the nature of certiorari setting aside order 29 made on 1 February 2022 and quashing the decision of the Second Defendant made on 17 December 2021 to the extent that they relate to the application for non-publication orders in respect of the information identified in the orange cells in Confidential Schedule A to these orders. 3 An order remitting the matter to the State Coroner or a Deputy State Coroner for the Plaintiff's claims for public interest immunity and application for non-publication orders in respect of the information identified in orders (1) and (2) to be determined according to law. 4 The Plaintiff's Summons filed on 16 March 2022 otherwise be dismissed. 5 There be no order as to costs. 6 Pursuant to section 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act), on the grounds in sections 8(1)(a) and (c) of the Act, and/or in the exercise of the Court's inherent jurisdiction, the Court orders: a. In relation to the information contained in Confidential Schedules A and B to these orders, tabs 2, 3, 18, 20, 22A, 24, 26, 27, 31, 33, 34, 35, 36, 39, 50, 51, 52 and 55 of the Court Book filed by the Commissioner on 1 April 2022 (MFI 1), tender bundle B (MFI 2) and Exhibit C: i. subject to sub-paragraph (ii), there is to be no disclosure (by publication or otherwise) of the information contained in those documents, including any part of any submissions referring to that information; ii. the information referred to in sub-paragraph (a) above may be disclosed to the Coroner's Court, Court staff and officers, the legal representatives of the parties to the application and those assisting the Second Defendant in relation to the Coroner's Court proceedings. b. In relation to the information contained in tabs 28, 30, 41, 43, 44 and 54 of the Court Book filed by the Commissioner on 1 April 2022 (MFI 1) there is to be no publication of the information contained in those documents, including any submissions referring to that information. 7 Pursuant to section 12 of the Act, order 6 applies for 50 years or until further order. 8 Pursuant to section 11 of the Act, order 6 applies throughout the Commonwealth of Australia. 9 Liberty to apply. Catchwords: ADMINISTRATIVE LAW – Judicial review – error of law – error of law on the face of the record – s 69 of the Supreme Court Act 1970 (NSW) – not in issue that Coroner's reasons form part of the record ADMINISTRATIVE LAW – Jurisdictional error – error of law on the face of the record – failure to consider clearly articulated claim or submission – failure to consider substantial evidence in respect of clearly articulated claim – failure to accord procedural fairness EVIDENCE – Public interest immunity – general principles – identification of relevant harm to public interest from disclosure – identification of relevant harm to public interest from non-disclosure - balancing the gravity of harm to public interest from disclosure against the gravity of harm to public interest from non-disclosure – whether potential relevance in coronial proceedings sufficient to establish harm to the public interest in the administration of justice from non-disclosure of material information – significance of tailored orders COURTS AND JUDGES – Coroner's court – coronial proceedings – procedural fairness – excluding information on the basis of public interest immunity does not involve denial of procedural fairness COURTS AND JUDGES – Principles of open justice – open justice in coronial proceedings – relevance to determining public interest immunity claim and effect of tailored orders Legislation Cited: Coroners Act 1980 (NSW), ss 22, 22A Coroners Act 2009 (NSW), ss 3, 10, 23, 27, 46, 47, 49, 57, 58, 59, 60, 62, 63, 65, 66, 73, 74, 79, 81, 82, 103, 103A Court Suppression and Non-publication Orders Act 2010 (NSW) Criminal Procedure Act 1986 (NSW), s 141, Ch 6, Pts 3 and 4 Evidence Act 1995 (NSW), s 130 Supreme Court Act 1970 (NSW), s 69 Cases Cited: Al Rawi v Security Service [2012] 1 AC 531; [2011] UKSC 34 Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85 Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7 Attorney General v Mirror Newspapers [1980] 1 NSWLR 374 Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 Baker v Campbell (1983) 153 CLR 52; [1983] HCA 39 Bilbao v Farquhar [1974] 1 NSWLR 377 Commissioner of Police, New South Wales v Guo [2016] FCAFC 62 Conway v Jerram, Magistrate and NSW State Coroner [2011] NSWCA 319 Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 Day v SAS Trustee Corporation [2021] NSWCA 71 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 Goodwin v Commissioner of Police [2010] NSWCA 239 HT v The Queen (2019) 269 CLR 403; [2019] HCA 40 ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75 John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324 Josephine Conway v Mary Jerram, Magistrate and NSW State Coroner (2010) 78 NSWLR 689; [2010] NSWSC 371 Minister for Immigration and Citizenship v SZRKT (2014) 212 FCR 99; [2013] FCA 317 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Musumeci v Attorney General of NSW (2003) 57 NSWLR 193; [2003] NSWCA 77 Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308 R v Lipton (2011) 82 NSWLR 123 R v Saleam [1999] NSWCCA 86 Roberts-Smith v Fairfax Media Publications Pty Limited (No 14) [2021] FCA 552 Roberts-Smith v Fairfax Media Publications Pty Limited (No 6) [2020] FCA 1285 Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Telstra Corporation Limited v Attorney General for New South Wales [2021] NSWSC 1521 The Australian Statistician v Leighton Contractors Pty Ltd (2008) 36 WAR 83; [2008] WASCA 34 Tropic Asphalts Pty Ltd v Snowy Monaro Regional Council [2021] NSWCCA 24 X v Deputy State Coroner for New South Wales (2001) 51 NSWLR 312; [2001] NSWSC 46 Yufeng Mao v Commonwealth of Australia [2012] NSWSC 370 Texts Cited: New South Wales, The Law Reform Commission, Report of the Law Reform Commission on the Coroners Act, 1960 (L.R.C 22), (1975) Category: Principal judgment Parties: Commissioner of Police (Plaintiff) Attorney General for New South Wales (First Defendant) Magistrate H Grahame, Deputy State Coroner (Second Defendant) – Submitting appearance Representation: Counsel: J Emmett SC and B Kaplan (Plaintiff) P Herzfeld SC and J Wherrett (First Defendant)