New South Wales Supreme Court CITATION : W v M & ors [2009] NSWSC 1084 HEARING DATE(S) : 16 September 2009 JURISDICTION : Equity Division JUDGMENT OF : Brereton J EX TEMPORE JUDGMENT DATE : 9 October 2009 DECISION : Proceedings to continue in closed court and access to court file restricted. Publication of information that would tend to reveal identity of parties and witnesses prohibited, and publication of proceedings prohibited except to extent that already in public domain via reported judgments CATCHWORDS : COURTS AND JUDGES – Proceedings in closed court – "Suppression orders" – where interlocutory injunction previously granted to restrain publication of imputations defamatory of plaintiff and in contempt of court – whether order should be made prohibiting publication of proceedings - principle of open justice – exception where open justice would defeat ends of justice – where disclosure of information that would permit or facilitate identification of W would defeat ends of justice – where some aspects of proceeding already in public domain LEGISLATION CITED : (NSW) Civil Procedure Act 2005, s 71, s 72 CATEGORY : Principal judgment Cleland v Cleland (1914) 109 LT 744 Director-General, Department of Community Services, Re Jules [2008] NSWSC 1193 John Fairfax & Sons v Police Tribunal (1986) 5 NSWLR 465 John Fairfax Publications v District Court of New South Wales (2004) 61 NSWLR 344 John Fairfax Publications v Local Court (1991) 26 NSWLR 131 Moosbrugger v Moosbrugger (1913) 29 TLR 658 CASES CITED : Norman v Mathews (1916) 85 LJKB 857 R v Tait (1979) 24 ALR 473 Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 Re F (a minor) [1977] Fam 58, [1977] 1 All ER 114 Russell v Russell (1976) 134 CLR 495 Scott v Scott [1913] AC 417 The Herald & Weekly Times Ltd v Magistrates Court of Victoria [1999] VSC 232 Y & Z v W [2007] NSWCA 329, (2007) 70 NSWLR 377 Fairfax Media Publications Pty Ltd (First Applicant) PARTIES : Channel 7 Sydney Pty Ltd (Second Applicant) W (Respondent) FILE NUMBER(S) : SC 5647/06 COUNSEL : Mr T Blackburn SC w Mr S Robertson (applicants) Mr B R McClintock SC w Mr D B Studdy SC (respondent) SOLICITORS : Johnson Winter & Slattery (applicants) Minter Ellison Lawyers (respondent) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BRERETON J Friday 9 October 2009 5647/06 W v M & 2 ors JUDGMENT 1 HIS HONOUR: On 17 November 2006 I made orders which, as subsequently varied by the Court of Appeal [Y & Z v W [2007] NSWCA 329, (2007) 70 NSWLR 377] restrained Y and Z until further order from: 1.1 Publishing to any person: (a) any imputation of and concerning W that she has had a sexual relationship with A; (b) any imputation of and concerning W that she has offered A's former wife a sum of money in return for her agreeing to divorce him; (c) any other imputation of and pertaining to W which is calculated to expose her to hatred, ridicule and contempt. 1.2 [Deleted by Court of Appeal]. 1.3 Communicating to W, directly or indirectly, any threat to make any publication or disclosure referred to in orders 1.1 and/or any request or demand for payment or other benefit in return for not making any such publication or disclosure. 1.4 Publishing or disclosing, to any person or institution, these proceedings, these orders, the identity of W, or anything which might identify her as a party to these proceedings. 2 On 29 May 2008, I made – ultimately by consent – further, more specific, orders in substitution for those orders. It is inappropriate to set them out in this judgment, as their specificity (in respect of the imputations pertaining to W) is such that they might tend to identify W. However, it is pertinent to record that Order 1.4 above – restraining the defendants from "publishing or disclosing, to any person or institution, these proceedings, these orders, the identity of W, or anything which might identify her as a party to these proceedings" – remained and remains on foot. 3 The proceedings before me were heard in closed court, and I made orders pursuant to (NSW) Civil Procedure Act 2005, s 72, that no information which tends to reveal the identity of the plaintiff or defendants be published or otherwise disclosed, and that access to the Court file not be granted without the leave of the court, in respect of which the parties were to be notified of any application. The proceedings in the Court of Appeal were also heard in closed court, and that court made orders that no information tending to reveal the identity of the parties be published or otherwise revealed, that access to the court file by non-parties in respect of any document not be granted without the leave of the court, and that if any application for access were made the parties be notified by the Registrar so as to be heard if they wished. Those orders remain in force. 4 Since then, the substantive proceedings – in which final injunctions to substantially the same effect as the existing interlocutory injunctions are sought – have continued to be case managed before me. They have not yet been set down for final hearing. 5 On 9 September 2009, W moved ex parte for further relief, producing evidence that journalists were making inquiries in respect of the proceedings, and establishing to my sufficient satisfaction that there was an appreciable risk of there being a publication which might permit at least some to identify one or more of the parties. Upon W giving the usual undertaking as to damages, I made the following order: 1. Until further order, publication or disclosure in any form whatsoever is prohibited of the following matters and of information which would reveal or tend to reveal the following matters or any of them: a. the existence, pendency and/or subject matter of these proceedings; b. any information derived from these proceedings; c. the identities of the parties to these proceedings; d. the contents of any document filed or served or tendered in connection with these proceedings including of any schedule, annexure or exhibit thereto. 2. Liberty is reserved to apply to any person affected by this order to vary or set aside this order upon such notice as to the court may seem appropriate … 6 The Court arranged for its media officer to notify major Sydney media agencies of the order. Pursuant to the liberty reserved in that order, Fairfax Media Publications Pty Ltd and Channel 7 Sydney Pty Ltd ("the applicants"), move to vary or set aside the order of 9 September, submitting that: · The order is inappropriate, as such orders should be made only if absolutely necessary in the interests of justice, and not merely to protect litigants or witnesses from embarrassment; · The order is unnecessary, since the effect of the orders made against the defendants is that it would be a contempt for the applicants to circumvent them by publishing the imputations; · The order is too wide. 7 Although it was said on behalf of the applicants that they did not suggest that the restrictions on publication should be entirely lifted, no precise formulation of what might be an appropriate limitation was developed. However, it was said that the applicants wished to be at liberty to publish, at least, the fact, existence and pendency of the proceedings; the identities of the parties; and the circumstance that the defendants had apparently threatened to publish imputations pertaining to W in order to bring pressure to bear on her former husband to settle other proceedings in which he and M were parties other than on their merits, which imputations their originator had admitted to be false. 8 For the purpose of the application only, Mr Blackburn, who appeared for the applicants, was furnished with a copy of my judgment of 17 November 2006, and of the (expurgated and published version of the) judgment of the Court of Appeal. Nonetheless it is appropriate to acknowledge that Mr Blackburn had to labour under the difficulty of imperfect knowledge of the facts, disclosure of which in greater detail might have increased the risk that it might become possible to identify W or other parties. 9 It is important to understand the bases on which W sought and obtained interlocutory relief. That relief was sought on four bases, namely: first, an injunction to restrain a breach of confidence; secondly, an injunction to restrain a threatened defamation; thirdly, an injunction to restrain commission of the criminal offence of blackmail; and fourthly, an injunction to restrain an abuse of process or contempt of court. 10 As to breach of confidence, I concluded that, to the extent that there was any evidence on the topic, it was not shown that the subject matter of the imputations was imparted to the source in confidence, and indeed the evidence favoured the view that the imputations were false. As there was then no basis for concluding that information was imparted to the source in confidence, I did not find a seriously arguable case for final relief on the basis of breach of confidence – although that is not to say that at a final hearing further evidence might not change that position. As to defamation issue, I concluded that there was a seriously arguable case for a final injunction restraining publication of the imputations. As to blackmail, I concluded that the court could not restrain the implementation of a threat or offer just because the making of the threat or offer had been one element (of several) in a potential criminal offence. However, as to contempt, I concluded that there was a seriously if not strongly arguable case for final relief by way of an injunction restraining the defendants from publishing the imputations pertaining to W, upon the grounds that for them to do so would be a contempt of court, constituted by an attempt to divert the course of justice by bringing pressure or influence to bear on their opponent in other litigation, which pressure was not of a legitimate type, but was to be created by the interests of W, their opponent's wife, in averting publication of imputations adverse to her. 11 I concluded also that the balance of convenience overwhelmingly favoured the grant of interlocutory relief. 12 Although one of the orders that I made was set aside as too wide, the Court of Appeal upheld my judgment generally – including order 1.4 – essentially on the contempt ground, finding it unnecessary to deal with the defamation ground. 13 The applicants rightly submit that open justice is a fundamental principle of the common law, and that the administration of justice must, subject to very limited exceptions, take place in open court [Russell v Russell (1976) 134 CLR 495, 520, 532-3; John Fairfax & Sons v Police Tribunal (1986) 5 NSWLR 465, 476G; Scott v Scott [1913] AC 417, 437, 438; Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47, 50]. Indeed, at common law, a court must sit in open court, except where the exercise of the court's jurisdiction would otherwise be defeated or frustrated; otherwise, statutory authority is required if a court is to sit in camera [Russell v Russell; Scott v Scott; R v Tait (1979) 24 ALR 473, 487-490; John Fairfax Publications v District Court of New South Wales (2004) 61 NSWLR 344, [21]]. 14 Nowadays, in any event – and for the purposes of the instant case – there is relevant statutory authority. Civil Procedure Act 2005, s 71, provides as follows: 71. Business in the absence of the public Subject to any Act, the business of a court in relation to any proceedings may be conducted in the absence of the public in any of the following circumstances: (a) on the hearing of an interlocutory application, except while a witness is giving oral evidence, (b) if the presence of the public would defeat the ends of justice, (c) if the business concerns the guardianship, custody or maintenance of a minor, (d) if the proceedings are not before a jury and are formal or non-contentious, (e) if the business does not involve the appearance before the court of any person, (f) if, in proceedings in the Equity Division of the Supreme Court, the court thinks fit, (g) if the uniform rules so provide. 15 The intentional publication of proceedings known to have been conducted in camera is likely to be a contempt of court [cf Scott v Scott, 448, 476; Re F (a minor) [1977] Fam 58, [1977] 1 All ER 114]. 16 Further, s 72 provides as follows: 72. Court may prohibit disclosure of information The court may, by order, prohibit the publication or disclosure of any information tending to reveal the identity of: (a) any party to proceedings, or (b) any witness in proceedings, if it is of the opinion that it is necessary to do so to secure the proper administration of justice in the proceedings. 17 Given the existence of those statutory provisions, what I must do on this application is to exercise the discretion given by s 71 and s 72, giving due consideration to the relevant factors that inform that discretion – as distinct from applying the common law principles to which I have referred, although the common law principles continue to furnish relevant background and guidance, and indeed some aspects of them are reflected in the legislation. Nonetheless, in applying the statutory provisions, I respectfully entirely agree with the view that the common law tradition of open justice – to which the statutory derogation operates as an exception – warrants a strict and narrow construction of the statutes. As Kirby P (as he then was) said, in Raybos Australia Pty Ltd v Jones (at 55): Many cases report the scrutiny by courts of statutory provisions designed to derogate from the open administration of justice. Running through these decisions is a common theme. It is that, by our tradition, the open administration of justice is the rule. Statutory derogation from openness is the exception. In defence of the rule, such statutes will usually be strictly and narrowly construed. Unless the derogation is specifically provided for, courts are loath to expand the field of secret justice. 18 In The Herald & Weekly Times Ltd v Magistrates Court of Victoria [1999] VSC 232, (at [44]-[45]), Beach J expressed agreement with those observations of Kirby P. Indeed, even in proceedings concerning the guardianship, custody or maintenance of a minor, I have inclined to the view that ordinarily, so long as the identity of the child can be protected, the proceedings should be held in open court [Director-General, Department of Community Services, Re Jules [2008] NSWSC 1193, [23]-[25]]. 19 Given that these are proceedings in the Equity Division, it suffices to attract the operation of s 71 that the court thinks fit that the proceedings be conducted in the absence of the public [s 71(f)]. However, the application was argued primarily by reference to the concept, embodied in s 71(b), namely that the presence of the public would defeat the ends of justice. 20 The exception – even at common law – for circumstances where the exercise of the Court's jurisdiction would otherwise be defeated acknowledges the qualification to the principle of open justice, that it must yield in circumstances where open justice would defeat the attainment of justice. One well-established exception is in blackmail and extortion cases [John Fairfax Publications v District Court, [45]; John Fairfax Publications v Local Court (1991) 26 NSWLR 131, 141, 159-160]. In the latter case, Kirby P said (at 141): 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. 21 And in Herald & Weekly Times, Beach J, citing that passage, explained (at 39): The reason a person can be blackmailed successfully is usually because he or she has committed some indiscretion which would bring him or her into public odium were such indiscretion revealed. Without a guarantee of anonymity such a person may well endure the blackmail in silence. It is with a view to encouraging such people to come forward and reveal the blackmail that their anonymity is guaranteed. 22 Accordingly, at common law, the open justice principle is subject to an exception where publication would defeat the ends of justice [cf Moosbrugger v Moosbrugger (1913) 29 TLR 658; Cleland v Cleland (1914) 109 LT 744; Norman v Mathews (1916) 85 LJKB 857]. This is mirrored in s 71(b). 23 A pertinent example is to be found in the defamation case Chappell v TCN Channel 9 Pty Ltd (1988) 14 NSWLR 153, in which – although the proceedings as a whole and the general nature of the imputations were not suppressed, the detail of the imputations was. As Hunt J said (at 156): To reproduce in this publicly delivered judgment the sleazy gutter journalism by which those articles are characterised would invite its republication in reports of the court proceedings in the more widely read and heard media, and thus gratify Miss Hickey's wish (which is clearly apparent from everything which she has done so far) to inflict the greatest possible harm upon the plaintiff. It is best that only a neutral description be given of both the Truth newspaper articles and the proposed segment in the television programme: David Syme & Co Ltd v General-Motors Holden's Ltd [1984] 2 NSWLR 294 at 300-301, 308. The court was closed when a video of the proposed segment was shown, in order to prevent its contents being reported as part of the proceedings before me. To have permitted such a report to be published would obviously have defeated the whole purpose of the plaintiff's application: Supreme Court Act 1970, s 80(b); Scott v Scott [1913] AC 417 at 437-438, 446; see also Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1 at 11-14. 24 In my judgment, publication of the fact, existence, pendency and/or subject matter of the present proceedings, or information derived from them, such as to permit or facilitate identification of W, would defeat the ends of justice. Publication of the imputations in that context would adversely affect her reputation. It was submitted that publication of the fact that W had been the subject of scurrilous false allegations for the purpose of applying pressure to her former husband to settle unrelated proceedings, could not possibly be damaging to W. I disagree. The sting in an imputation is not necessarily removed by its publication under a caveat that it is not suggested to be true – or even that it has been admitted to be false. I am satisfied that, having regard to the nature of the imputations and W's status, there is a serious risk of jeopardy to her reputation – both generally and specifically with her husband and family – and her welfare. 25 I accept that protection of W from embarrassment is of itself insufficient ground for the order sought, which should be made only if absolutely necessary in the interests of justice, and not merely to protect litigants or witnesses from embarrassment. However, publication of the imputations would defeat the very purpose of the proceedings, in which W seeks a final injunction (having already obtained an interlocutory injunction) prohibiting their publication [cf Chappell v TCN 9]. It would vindicate the conduct of M, by promulgating the very imputations he threatened to publish to apply improper pressure to W and indirectly to her husband. It would frustrate the efficacy of the orders already made against the defendants. 26 Conduct of the proceedings other than in camera would plainly have that tendency. Identification of any other of the parties or participants might well lead to the identification of W. However, the fact, and some aspects, of the present proceedings are no longer secret. An expurgated version of the judgment of the Court of Appeal has been reported. Of itself, that does W no harm – so long as it does not lead to the identification of the parties. I have come to the conclusion that it is not necessary to suppress the fact, existence and pendency of the proceedings – and their subject matter, to the extent that it is already in the public domain – so long as any publication in no way tends to identify the parties, and that to that extent, publication ought not be prohibited. However, those who might seek to avail themselves of that liberty should be under no misapprehension – it may take very little of the subject matter, even in general terms, to permit inferences to be made, particularly by informed persons, as to the identity of the participants; and publication of anything that would facilitate the drawing of inferences, even by informed persons, as to the identity of the parties, would contravene the intent of the order I propose to make. 27 It was also submitted that the order was unnecessary for the further reason that it was a consequence the orders already made against the defendants that it would be a contempt for the applicants to circumvent them by publishing the imputations. Insofar as it is suggested that the applicants would commit a contempt by publishing the imputations if on notice of the orders against the defendants, I am unconvinced that the applicants are bound by those orders. While they might commit contempt if they were to aid and abet the defendants to breach the orders, it does not follow that the applicants, being bound by no order directed to them, would commit a contempt by publishing the imputations. Moreover, it is clear that the applicants wish to publish the imputations – albeit under cover of some kind of caveat – if I discharge the 9 September order. In that context, it is much preferable to make a general order "against the world" under s 71 and 72, than to rely on the possibility of indirect application of the orders already made. 28 Accordingly, the proceedings will continue to be conducted in closed court. The restriction already in place on access to the court file will stand. I will, however, vary order 1 made on 9 September 2009, in substance by omitting subparagraphs (a) and (b), so that publication of the existence, pendency and/or subject matter of these proceedings, and information derived from them, insofar as it is already in the public domain, will be prohibited only insofar as it may tend to reveal the identity of the parties and witnesses. Subject to any submissions as to its form, the order I propose to make, as varied, is as follows: 1. Until further order, publication or disclosure in any form whatsoever is prohibited of: a. any information, including the subject matter of these proceedings, which would directly or indirectly reveal or tend to reveal the identity of, or facilitate the identification of, any party to or any witness in these proceedings; b. any evidence given or submission made in these proceedings, and the contents of any document filed or served or tendered in connection with them (including any schedule, annexure or exhibit thereto), save insofar as the same is reproduced in the reported judgment of the Court of Appeal Y & Z v W [2007] NSWCA 329; (2007) 70 NSWLR 377, or in this judgment. 2. Liberty is reserved to any person affected by this order to apply to vary or set aside this order by arrangement with my Associate upon such notice as to the court may seem appropriate. 29 Both parties have had a degree of success and a degree of failure on the application. Matters of public interest, justifying the applicants in raising the matter, were involved. Prima facie, each party should bear its own costs of the application. But I shall afford counsel an opportunity to be heard on that question also. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.