Attorney-General for NSW v. Nationwide News Pty. Limited & Anor. [2007] NSWCCA 324

New South Wales Court of Criminal Appeal

CITATION: Attorney-General for NSW v. Nationwide News Pty. Limited & Anor. [2007] NSWCCA 324

HEARING DATE(S): 19 November 2007 JUDGMENT OF: Hodgson JA at 1

EX TEMPORE JUDGMENT DATE: 19 November 2007

DECISION: I stay the discharge of the order made on 3 October 2007 until 29 November 2007 to the intent that the order made on 3 October 2007 will cease to be effective as from 30 November 2007.

CATCHWORDS: PRACTICE - Interlocutory relief pending application for special leave to appeal to High Court - Balance of convenience not clear - Appeal assessed as not having strong grounds.

CASES CITED: Sibuce Pty. Limited v. Shaw (No.2) (1988) 13 NSWLR 125

Attorney-General for NSW - appellant PARTIES: Nationwide News Pty. Limited - 1st respondent John Fairfax Pty. Limited - 2nd respondent

FILE NUMBER(S): CCA 2007/1450-003

COUNSEL: Mr. L. Babb SC for appellant Mr. T. Maltz for respondents

SOLICITORS: I.V. Knight, Crown Solicitor for appellant Blake Dawson Waldron, Sydney, for respondents

LOWER COURT FILE NUMBER(S): CCAP 2007/1450

LOWER COURT JUDICIAL OFFICER: Fullerton J

IN THE COURT OF CRIMINAL APPEAL CCA 2007/1450-003

HODGSON JA

Monday 19 November 2007 ATTORNEY-GENERAL FOR NEW SOUTH WALES V. NATIONWIDE NEWS PTY. LIMITED & ANOR. Judgment 1 HODGSON JA: When the Court gave its decision in this matter, I extended interlocutory relief until today. The Attorney-General now seeks that it be further extended until the determination of an application for special leave to appeal which is to be brought in the High Court and, if special leave is granted, until the determination of the appeal. 2 Mr Babb, for the Attorney-General, submits that if the interlocutory relief is not extended the appeal could be rendered nugatory so far as this particular case is concerned. He has submitted that the appeal is on reasonable grounds. He has referred me to Sibuce Pty Ltd v Shaw (No.2) (1988) 13 NSWLR 125 for the proposition that, if the Court of Appeal considers it an appropriate case for a stay, then the Court of Appeal should grant the stay itself and not leave it to the applicant for special leave to go to the High Court to get a stay. 3 I accept that case does indicate the Court of Appeal certainly should not feel inhibited from making such an order; but it does not rule out the possibility of a court considering in a particular case that it would be more appropriate to leave it to the High Court to decide whether the prospects of success are such that a stay should be granted. 4 In my view, there are considerations operating both ways as to the balance of convenience. The information in question is already, to a considerable extent, in the public domain, so that the difference made by the release of the particular material under consideration in this case, while possibly not insignificant, is not of very great significance. 5 As submitted by Mr Maltz, for the media interests, there is also a public interest in knowing at a relevant time what the basis of a criminal conviction is, so that if the information is withheld the opportunity for the public to know, at a relevant time, what the basis of the conviction was, would be lost. 6 In those circumstances, for myself, I would be prepared to grant an injunction until the determination of an appeal only if I thought the appeal had strong grounds. While I cannot say the appeal is unreasonable, my own assessment would be that it does not have a strong chance of success. A High Court judge may take a different view, and for that reason I would propose to give the Attorney General a further opportunity to approach the High Court; and I will extend the interlocutory relief until Thursday 29 November to give the Attorney that opportunity. 7 I stay the discharge of the order made on 3 October 2007 until 29 November 2007, to the intent that the order made on 3 October will cease to be effective as from 30 November 2007. **********