Citation: O'Shane v Burwood Local Court (NSW) & Ors [2007] NSWSC 1300
Court: Supreme Court of New South Wales, Common Law Division
Date: 19 November 2007
Judge(s): McClellan CJ at CL
Background
The claimant was a magistrate who was the subject of an application for an apprehended violence order brought by police on behalf of another person. The application was initially framed as an apprehended domestic violence order (ADVO) but was amended during the hearing to an apprehended personal violence order (APVO) when it became clear that no domestic relationship existed between the parties.
During the hearing at Burwood Local Court, police counsel applied for suppression orders, ultimately confined to a request for a pseudonym order protecting the identity of the person on whose behalf the AVO was sought. The magistrate made the pseudonym order despite the amendment to the application, and despite no evidence being tendered in support of the suppression application. The claimant challenged the order in the Supreme Court.
The claimant argued that the magistrate had no power to make the pseudonym order in APVO proceedings, that no evidence supported it, and that the claimant's right to be heard had not been properly respected.
Legal Issues
- Whether the Local Court had power, statutory or implied, to make a pseudonym order in APVO proceedings once the application had been converted from an ADVO application (under which s 562ZK of the Crimes Act 1900 provided an express suppression power)
- Whether, even if such a power existed, the evidence before the magistrate was sufficient to justify making the pseudonym order
- Whether the claimant had standing to be heard in relation to the suppression application
- Whether the circumstances relied upon by police (intense media scrutiny of a person in high public office) fell within the recognised categories permitting departure from the principle of open justice
Decision
McClellan CJ at CL held that the statutory power to make a pseudonym order under s 562ZK of the Crimes Act 1900 was only available in ADVO proceedings. Once the application was amended to an APVO, that express power was no longer available. The court also considered whether the Local Court possessed an implied power to make such an order, drawing on principles established in Grassby v The Queen and the John Fairfax line of cases.
The court confirmed that the principle of open justice is one of the most fundamental features of the Australian court system, and that exceptions to it are few and strictly defined. The recognised categories permitting suppression orders include cases involving informers, blackmail, national security, and extortion. The circumstances here, namely intense media interest in proceedings involving a prominent public figure, did not fall within any of those established categories.
Even if an implied power existed, the court found it was not exercised on any proper evidentiary foundation. Police counsel expressly stated that no evidence would be tendered, relying instead on the court's capacity to draw inferences from its own knowledge. The court held that the situation here fell outside any accepted principle, and that inferences about likely press conduct would have required evidence of facts from which those inferences could be drawn. No such evidence was before the magistrate.
On the question of standing, the court found that the magistrate had erred in ruling the claimant was not a party to the suppression application. As a party to the primary AVO proceedings, the claimant had a right to be heard on any interim or ancillary orders. Counsel for the police conceded this point before the Supreme Court.
Orders Made
- The pseudonym order made in relation to the identity of "Miss Armstrong" (previously referred to as "Ms B") was quashed.
- The second and third opponents (the Commissioner of Police and the constable who brought the application) were ordered to pay the claimant's costs.
- The second and third opponents were directed that they may, if qualified, have a certificate under the Suitors' Fund Act.
Key Takeaways
- Once ADVO proceedings were amended to APVO proceedings, the express statutory power under s 562ZK of the Crimes Act 1900 to make suppression or pseudonym orders was no longer available to the Local Court.
- Any implied power of a statutory court such as the Local Court to depart from the open justice principle is limited and must satisfy a test of necessity for the proper administration of justice; the touchstone is reasonableness, not mere convenience.
- The recognised categories permitting courts to make pseudonym or suppression orders remain narrow: informers, blackmail, national security, and extortion. Intense media scrutiny arising from a party's public profile does not fall within those categories.
- Where a court is asked to draw inferences about likely consequences flowing from publication, evidence of the primary facts supporting those inferences is required; a submission unsupported by any evidence does not suffice, even if analogies are drawn to established categories.
- A party to AVO proceedings holds the right to be heard on any suppression or pseudonym application made in the course of those proceedings, including ancillary applications.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), Pt 15A, ss 562B, 562F, 562J, 562ZK
- Crimes (Personal and Family Violence) Amendment Act 1987
- Crimes Amendment (Apprehended Violence) Act 1999
- Crimes Amendment (Apprehended Violence) Act 2006 (NSW)
- Civil Procedure Act 2005 (NSW), ss 4, 72, Sch 1
- Local Courts Act 1982 (NSW), Pt 6
- Supreme Court Act 1970 (NSW), s 69
- Suitors' Fund Act (NSW)
Cases
- Grassby v The Queen (1989) 168 CLR 1
- John Fairfax & Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465
- John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131
- John Fairfax Publications Pty Limited v District Court of New South Wales (2004) 61 NSWLR 344
- John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512
- Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435
- R v Kwok (2005) 64 NSWLR 335
- R v Smith (1996) 86 A Crim R 308
- R v Socialist Worker Printers and Publishers Ltd; Ex parte Attorney-General [1975] 1 QB 637
- Witness v Marsden (2000) 49 NSWLR 429