Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Rinehart v Welker [2011] NSWCA 403
• Hearing dates: 7 December 2011
• Decision date: 19 December 2011
• Before: Bathurst CJ and McColl JA at [1]; Young JA at [57]

Decision

1. Discharge orders 1, 2 and 3 made by Tobias AJA on 31 October 2011;

2. Order that the defendants pay the applicants' costs of the review and of the hearing before Tobias AJA.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court146s computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: SUPPRESSION ORDERS- Court Suppression and Non-Publication Orders Act 2010, s 6- a primary objective of the administration of justice is to safeguard the public interest in open justice- principle of open justice one of the most fundamental aspects of the system of justice in Australia- the entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public- exceptions to open justice when court is acting in parental and administrative capacity, in blackmail and extortion cases and where disclosure of the information would seriously affect its commercial value- none of the exceptions apply.; SUPPRESSION ORDERS- Court Suppression and Non-Publication Orders Act 2010, s 8(1)(a)- whether the making of an order is necessary to prevent prejudice to the proper administration of justice- meaning of the word "necessary"- necessary is a strong word- orders under the Act should only be made in exceptional circumstances- necessary does not mean convenient, reasonable or sensible- it is not sufficient that information is inherently confidential as distinct from personal or commercial information that has value as an asset that would be compromised.; SUPPRESSION ORDERS- Court Suppression and Non-Publication Orders Act 2010, s 7- meaning of "information"- per Young JA (Bathurst CJ and McColl JA not deciding) information includes evidence and material which reveals the identity of a party or witness or a person related to or otherwise associated with a party or witness- orders should be confined to information as defined in s 7.; STATUTORY INTERPRETATION- principle of legality- legislation should be construed consistently with the statutory scheme in a way that has the least adverse impact upon the open justice principle and common law freedom of speech.; STATUTORY INTERPRETATION- whether an uncommenced Act can be used to construe a statute- Acts in a legislative scheme can be used to construe one another, even if one is uncommenced.; WORDS AND PHRASES- "Necessary".
• Legislation Cited: Arbitration Act 1996 (UK), s 1; Commercial Arbitration Act 2010, s 1C; Contempt of Court Act 1981 (UK) ss 4, 11; Court Information Act 2010 (uncommenced); Court Suppression and Non-Publication Orders Act 2010, ss 3, 4, 6, 7, 8, 9; Defamation Act 2005, s 29; Federal Court of Australia Act 1976, s 50; Marriage Act 1928 (Vic), s 136; Supreme Court Act 1970, ss 19, 46; Trustees Act 1962 (WA), s 77; Uniform Civil Procedure Rules 2005, r51.2
• Cases Cited: Attorney General v Leveller Magazine Ltd [1979] AC 440; Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342; Attorney-General for NSW v Nationwide News Pty Ltd [2007] NSWCA 307; 73 NSWLR 635; Australian Broadcasting Commission v Parish (1980) 43 FLR 129; Black v Director-General of Education [1982] 2 NSWLR 714; David Syme & Co Ltd v General Motors-Holden Ltd [1984] 2 NSWLR 294; Department of Economics, Policy and Development of the City of Moscow v Bankers Trust Co [2004] EWCA Civ 314; [2005] QB 207; Esso Australia Resources Ltd v Plowman (Minister for Energy & Minerals) [1995] HCA 19; 183 CLR 10; Fiona Trust & Holding Corp v Privalov [2007] UKHL 40; [2008] 1 Lloyd's Rep 254; Hodgson v Crane [2002] NSWCA 276; 55 NSWLR 199; Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651; Hogan v Hinch [2011] HCA 4; 85 ALJR 398; House v R [1936] HCA 40; 55 CLR 499; John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465; John Fairfax Group Pty Ltd (Receivers and Managers appointed) v Local Court of New South Wales (1992) 26 NSWLR 131; John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; 61 NSWLR 344; John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; 62 NSWLR 512; Kiri Te Kanawa v Leading Edge Events Australia Pty Ltd [2007] NSWCA 274; Lo v Iverach [2009] NSWCA 92; Lovell v Lovell [1950] HCA 51; 81 CLR 513; Moti v R [2011] HCA 50; Patrick v Howorth [2002] NSWCA 285; Priest v Priest (1963) 9 FLR 384; R v Clerk of Petty Sessions Hobart; Ex parte Davies Brothers Ltd (1998) Tas R 283; R v Legal Aid Board; Ex parte Kaim Todner (a firm) [1999] QB 966; R v Macfarlane; Ex parte O'Flanagan and O'Kelly [1923] HCA 39; 32 CLR 518; R v Tait (1979) 46 FLR 386; Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47; Re Applications by Chief Commissioner of Police [2004] VSCA 3; 9 VR 275; Russell v Russell [1976] HCA 23; 134 CLR 495; Scott v Scott [1913] AC 417; Throughvision Pty Ltd v Sky Channel Pty Ltd [2010] VSC 139; Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; 60 NSWLR 143; Ward v The Folkestone Waterworks Company (1890) 62 LT 321; Wentworth v Wentworth (1994) 35 NSWLR 726
• Category: Principal judgment
• Parties: Australian Broadcasting Corporation, Fairfax Media Publications Pty Ltd, Nationwide News Pty Ltd (Applicants - First Set); Hope Rinehart Welker, John Langley Hancock, Bianca Hope Rinehart (Applicants - Second Set); Gina Hope Rinehart (First Opponent); Ginia Hope Frances Rinehart (Second Opponent)
• Representation: B Walker SC and A T S Dawson (Applicants - First Set); Dr A S Bell SC and D F C Thomas (Applicants - Second Set); B A Coles QC and P Kulevski (First Opponent); F Kunc SC and P W Flynn (Second Opponent); Addisons (Applicants - First Set); Johnson Winter & Slattery (Applicants - Second Set); Corrs Chambers Westgarth (First Opponent); Gadens Lawyers (Second Opponent)
• File Number(s): CA 2011/344306; 2011/344307

Decision under appeal

• Citation: Rinehart v Welker and Ors [2011] NSWCA 345
• Date of Decision: 2011-10-31 00:00:00
• Before: Tobias AJA
• File Number(s): CA 2011/344306; 2011/344307

Judgment

1 BATHURST CJ and McCOLL JA: We have read Young JA's reasons in draft. We agree with the orders his Honour proposes. Because we are disagreeing with the views of a fellow judge of this Court, we thought it appropriate to express our own reasons.

2 In this judgment we refer to, the applicants for review, Hope Rinehart Welker, John Langley Hancock, Bianca Hope Rinehart as the "plaintiff beneficiaries", the interveners, the Australian Broadcasting Commission; Fairfax Media Publications; and Nine Network; Nationwide News, as the "media interests" the first respondent, Gina Hope Rinehart, as the trustee and the second respondent, Ginia Hope Frances Rinehart, as the "defendant beneficiary" where necessary.

3 The plaintiff beneficiaries seek a review pursuant to s 46 of the Supreme Court Act 1970 of Tobias AJA's decision granting a suppression order under the Court Suppression and Non-publication Orders Act 2010 (the "CSPO Act"): Rinehart v Welker and Ors [2011] NSWCA 345 (the "primary judgment"). The orders were made on the application of the trustee and the defendant beneficiary. The media interests have intervened in the proceedings both at first instance and on appeal to advance the proposition that no suppression order should be, or should have been, made.

Legislative framework

4 The following provisions of the CSPO Act are relevant:

" 3 Definitions

...

'non-publication order' means an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information).

...

'suppression order' means an order that prohibits or restricts the disclosure of information (by publication or otherwise).

4 Inherent jurisdiction and powers of courts not affected

This Act does not limit or otherwise affect any inherent jurisdiction or any powers that a court has apart from this Act to regulate its proceedings or to deal with a contempt of the court.

6 Safeguarding public interest in open justice

In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

7 Power to make orders

A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of:

(a) information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court, or

(b) information that comprises evidence, or information about evidence, given in proceedings before the court.

8 Grounds for making an order

(1) A court may make a suppression order or non-publication order on one or more of the following grounds:

(a) the order is necessary to prevent prejudice to the proper administration of justice,

(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,

(c) the order is necessary to protect the safety of any person,

(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency),

(e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made."

5 The CSPO Act is based on draft model provisions formulated as part of the process of harmonising the laws of Australia which were endorsed at the May 2010 Standing Committee of Attorneys-General meeting. New South Wales is the first jurisdiction to adopt the model provisions: Second Reading Speech, Court Suppression and Non-publication Orders Bill, New South Wales Legislative Council, Parliamentary Debates (Hansard) 23 November 2010.

6 No other State or Territory has yet adopted the model provisions. However the Commonwealth has introduced the Access to Justice (Federal Jurisdiction) Amendment Bill 2011 which has been read a second time and was referred on 25 November 2011 to the Legal and Constitutional Affairs Legislation Committee for report by 22 March 2012. If passed the Bill will have the effect of inserting the model provisions into the Family Law Act 1975 (Cth), the Federal Court of Australia Act 1976 (Cth), the Federal Magistrates Act 1999 (Cth) and the Judiciary Act 1903 (Cth).

Background

7 The background to the controversy appears in two decisions of Brereton J: Welker & Ors v Rinehart [2011] NSWSC 1094 (the "Suppression Order decision") and Welker & Ors v Rinehart & Anor (No 2) [2011] NSWSC 1238 (the "Deed Decision"). In short, as the proceedings were commenced, the plaintiff beneficiaries sought orders pursuant to the Trustees Act 1962 (WA) varying a Deed of Settlement made by Langley George Hancock as amended by a subsequent Deed of Amendment ("The Trust Deed"), varying the Trust Deed by splitting the trust into separate trusts and removing the trustee from one of the newly created trusts (the "Second Trust") and appointing themselves as trustees of that Second Trust.

8 The relief sought was subsequently amended. It is not apparent to what extent the amendments superseded or supplemented any of the original claims for relief, although it appears that claims dealing with the vesting of trust property have been abandoned: primary judgment (at [6], [17]). In the amended relief the plaintiff beneficiaries also sought orders in the Court's inherent equitable jurisdiction and/or under the Trustees Act removing the trustee as Trustee of the Second Trust and a declaration that she had misconducted herself in the administration of the Trust established under the Trust Deed within the meaning of s 77(2)(b) of the Trustees Act : Deed Decision (at [1], [4]).

9 The proceedings were commenced by ex parte application. From her first appearance, the trustee sought a stay of the proceedings and a suppression order on the basis that the proceedings were an abuse of process, having been commenced without prior compliance with the confidential alternative dispute resolution ("ADR") procedures for which the Trust Deed provided: Suppression Order decision (at [3]). The defendant beneficiary supported that application. In particular the trustee relied on cl 20.8 of the Deed which provided as follows:

"Confidentiality of Proceedings

The dispute the subject of the mediation/arbitration, the mediation and arbitration hearing and the submissions thereto and the decision of the mediation and/or arbitration shall be kept confidential."

10 Brereton J originally acceded to the application pending determination of the stay application: Suppression Order decision (at [25]).

11 However his Honour subsequently held that the plaintiff beneficiaries' claims, in substance to remove the trustee and replace her with another family member, did not entail a "dispute under the [Trust] Deed" - the operative expression in the confidentiality provisions, cl 20: Deed Decision (at [7], [32] - [41]). As to matters the defendant beneficiary sought to raise in defence, his Honour held that even if they "might independently found a 'dispute under this Deed', in the present context they are but aspects of a larger dispute, pertaining to removal of the trustee, which as a whole is not accurately characterised as a 'dispute under this Deed'": Deed Decision (at [49]).

12 The consequence was that the basis for the suppression order was removed (Deed Decision (at [52])) however his Honour (at [54]) decided to grant an interim suppression order pending the determination of the application for leave to appeal from his decision to prevent prejudice to the proper administration of justice. In this respect he said:

"... If such an order is not made, an arguable appeal - as I find the application for leave to appeal is - would be rendered nugatory and the right to confidentiality under the Deed which the defendants seek to vindicate by their application for leave to appeal would be defeated before it could be heard in the Court of Appeal."

13 His Honour ordered:

"Pursuant to (NSW) Court Suppression and Non-Publication Orders Act , 2010, s 10, and alternatively pursuant to the inherent jurisdiction of the court, I make an interim suppression order upon the ground referred to in s 8(1)(a) of that Act, that such order is necessary to prevent prejudice to the administration of justice, prohibiting disclosure by publication or otherwise of information as to any relief claimed in the proceedings or any pleading evidence or argument filed read or given in the proceedings. This order has effect, subject to revocation by this Court, until the expiration of 7 days from the date on which my written reasons for judgment given orally on 7 October 2011 are published on the Court's website, and thereafter if within that period the first defendant or second defendant has filed a summons for leave to appeal until the determination of that application or further order of this Court or of the Court of Appeal. Pursuant to (NSW) Court Suppression and Non-Publication Orders Act 2010, s 11, it is specified that this order applies throughout the Commonwealth of Australia. Pursuant to (NSW) Court Suppression and Non-Publication Orders Act 2010, s 9(4), this order does not prohibit:

(a) Disclosure or publication of any judgment given in these proceedings to date nor of any orders made in the proceedings.

(b) Disclosure to Hancock Prospecting Pty Ltd nor to the professional advisers and potential witnesses or funders of any party to the proceedings (including Hancock Prospecting Pty Ltd), in every case only for the purposes of the proper conduct of these proceedings and/or the proposed appellate proceedings and provided that prior to such disclosure the person to whom the disclosure is to be made has been informed of this order and has acknowledged that they are bound by this order."

Tobias AJA's decision

14 On 28 October 2011 the trustee and the second beneficiary filed summonses seeking leave to appeal from his Honour's order dismissing the motions for a stay. They also filed notices of motion seeking, among other orders, "a further order pursuant to the [CSPO] Act prohibiting the disclosure by publication or otherwise of any information as to 'the relief claimed or any pleading, including the Summary of Argument, the Summons, the draft Notice of Appeal, evidence or argument filed read or given in' the proceedings the subject of the summons for leave to appeal": primary judgment (at [5]). It appears that relief was intended to embrace and build upon the suppression order Brereton J had granted pending determination of the summons seeking leave to appeal and extend it to documents brought into existence for the purpose of the appeal.

15 The notices of motion came before Tobias AJA in the referrals list on 31 October 2011 on which occasion his Honour delivered an ex tempore judgment.

16 The trustee and the second beneficiary based their application for relief on s 8(1)(a) of the CSPO Act: primary judgment (at [13]). They submitted (primary judgment (at [25] - [26])):

"...[A]s a matter of certainty, publication of the material that would be filed in the present appeal would negate the purpose of the confidentiality provisions in the Deed and would circumvent the rights of the applicants to have such disputes resolved by confidential mediation or arbitration in the event the leave to appeal was granted and the appeal succeeded [and that] ... not to grant such an order, as his Honour himself had observed at [54] of the second judgment, would render any appeal (if leave was granted) nugatory."

17 His Honour recorded counsel for the plaintiff beneficiaries' contentions, including:

"29 In one sense it was accepted that this was a family dispute about the interests in, and the governance of, a family trust. However, Dr Bell submitted that the public had an interest in the determination of a dispute such as the present that involved alleged misconduct on behalf of a trustee. He contended that unacceptable conduct on behalf of a trustee should be the subject of a public hearing, and normally is, where the Court will lay down what is acceptable conduct of a trustee and what is not."

18 Of this submission, his Honour said:

"30 On its face that submission may well be true but of itself I do not regard it as carrying any particular weight when determining whether an order is necessary to prevent prejudice to the proper administration of justice in the context of the present case."

19 His Honour dealt with Dr Bell's next submissions as follows:

"31 It was also submitted by Dr Bell that if the primary judge was correct and if I did grant an order pursuant to the Act, its effect would be that open justice would be trumped by any agreement entered into between parties that provided for the confidential resolution of their disputes outside the ordinary court system. However, it does not seem to me that the public interest referred to should in every case be permitted to trump the provisions of an agreement by parties closely related to each other that their family disputes should be determined in confidence and out of the public eye.

32 It was further submitted that in the event that his Honour's dismissal of the stay application was reversed by this Court, there would then be a stay and the dispute between the parties would then proceed on a confidential basis in accordance with the Deed and, therefore, no harm would be caused. The difficulty with that argument is that given the terms of the amended summons, the situation would then be that the allegations against Mrs Rinehart would be in the public domain but because of the grant of a stay, her response thereto and the ultimate resolution of those allegations would be kept confidential. It does not seem to me that the administration of justice would be advanced in such an event.

33 Thus in the circumstances postulated there would be significant pressure upon Mrs Rinehart to make public her response to the allegations which are in the public domain and to the ultimate resolution of the dispute, particularly if it was in her favour."

20 Tobias AJA (at [35]) approached the issue of the strength of the case on appeal on the basis of Brereton J's observation that it was "arguable", while recognising (at [36]) that that "may still mean that its prospects of success are not particularly strong."

21 His Honour then, after referring to s 6 of the CSPO Act, said in passages of which the plaintiff beneficiaries and the media interests are both highly critical:

"38 It cannot be gainsaid that it is necessary for the Court in determining whether to exercise the discretion to grant a suppression or non-publication order in the event that one of the grounds referred to in s 8(1) is made out, to take account of the fact that 'a primary objective of the administration of justice is to safeguard the public interest and open justice.' It is noteworthy, however, that the public interest in open justice is not said by s 6 to be either the primary objective of the administration of justice or the only objective thereof. It is a primary objective, meaning that there are other primary objectives of the administration of justice, or may well be, which should be taken into account. One of these is that parties should be held to their bargain.

...

41 However, as submitted by the applicants, the administration of justice is a multi-faceted concept. There is no doubt, and it was not disputed, that it is generally in the interests of the administration of justice that parties should be held to their bargain. Furthermore, and in the present day and age, disputing parties are encouraged to provide in their commercial agreements for a form of alternative dispute resolution which would take the pressure off the courts. The administration of justice in my view is capable of including the encouragement of parties to make such agreements and to abide by them where they otherwise apply to the dispute in question.

42 The parties in the present case have entered into such an agreement and subject to the issue as to whether the agreement applies to the present dispute, it should be given effect to with the result that a stay of the respondents' proceedings would likely be granted. If a stay is granted then it is difficult to see why the public should be made aware of the nature of the dispute which is required to be kept confidential, let alone the nature of the allegations that are made by one party or the other against another.

44 Mr Dawson adopted Dr Bell's submissions and added some submissions of his own. In particular, like Dr Bell, he sought to advance the proposition that there was a tension, as clearly there is, between the protection of a private right of contract on the one hand and the objective referred to in s 6 of the Act of safeguarding the public interest in open justice on the other. However, accepting that open justice is a primary objective of the administration of justice does not necessarily lead in every case to that objective being given determinative weight. The proper administration of justice has other objectives than that of open justice although it cannot be gainsaid that the latter is of fundamental importance, as this Court has made clear on numerous occasions.

45 However, taking that into account, if otherwise it is necessary to make an order to prevent prejudice to the administration of justice then the Court should not shrink from doing so. The Parliament has spoken and the common law must take second place to the provisions of the statute. Although there was some suggestion by his Honour that the statute provided a more strict criteria than existed at common law, I am not convinced that that is so. In my view the purpose of the legislation is to permit of the making of a suppression or non-publication order in circumstances which would not necessarily conform to the exceptions which the common law has recognised to the principle of open justice. However, there is no doubt that the strict words of the statute in terms of the grounds which must be established before an order is made, must be adhered to."

22 The terms of the order Tobias AJA made were:

"1. Pursuant to s.7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (Act), and on the grounds referred to in s 8(1)(a), a suppression order is made prohibiting the disclosure by publication or otherwise of any information as to the relief claimed or any pleading, the Summary of Argument, submissions, the draft Notice of Appeal, evidence or argument filed, read or given in these proceedings, and including the contents of the red book, blue book, black book and orange book but not including the Summons seeking Leave to Appeal or the pronounced or published judgment of Tobias AJA.

2. Pursuant to s.12 of the Act, the suppression order in paragraph 1 above operates until determination of the Applicant's application for leave to appeal is determined or until further order of the Court.

3. Pursuant to s.11 of the Act, the suppression order in paragraph 1 above applies throughout the Commonwealth."

23 At the time his Honour made the suppression order, he also made orders expediting the summonses for leave to appeal which are to be heard concurrently with the appeals.

Consideration

24 We have set out the entirety of s 8 to give context to s 8(1)(a) upon which the trustee and defendant beneficiary rely to support the making of the suppression order.

25 Underlying the enactment of the CSPO Act was, in part, a concern to resolve the question whether a court's inherent or implied power to make orders restricting the publication of any aspect of proceedings before it extended to orders purporting to bind the world at large: see Hogan v Hinch [2011] HCA 4; (2011) 85 ALJR 398 (at [23] - [27], [46]) per French CJ; Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 (at 355) per McHugh JA, Hope JA agreeing; Second Reading Speech, Court Suppression and Non-publication Orders Bill, New South Wales Legislative Council, Parliamentary Debates (Hansard) 23 November 2010.

26 The principle of legality favours a construction of legislation such as the CSPO Act which, consistently with the statutory scheme, has the least adverse impact upon the open justice principle and common law freedom of speech and, where constructional choices are open, so as to minimise its intrusion upon that principle: Hogan v Hinch (at [5], [27]) per French CJ; see also Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 (at 55) per Kirby P.

The meaning of "necessary"

27 The operative condition for making a suppression order under s 8 of the CSPO Act is that it be "necessary" to do so, which "... is a strong word [which, in] collocation [with] necessity to prevent prejudice to the administration of justice ...'suggests Parliament was not dealing with trivialities'": Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 (at [30]). The observations in Hogan v Australian Crime Commission were made in relation to a legislative scheme which, while it required the jurisdiction of the Court to be exercised in open court (s 17, Federal Court of Australia Act ) did not contain a provision in like terms to s 6 of the CSPO Act. That provision, in our view, reinforces the legislative intention that CSPO Act orders should only be made in exceptional circumstances, a position which prevailed at common law: John Fairfax Publications Pty Ltd v District Court of NSW (at [21]).

28 The word "necessary" was adopted as the test for making a suppression order on the recommendation of the NSW Law Reform Commission: see NSW Law Reform Commission, Contempt by Publication , Report 100, (June 2003), at [10.20]; see also NSW Law Reform Commission, Contempt by Publication , Discussion Paper 43, (July 2000) at Chapter 10, where the principal discussion leading to the recommendation in the final Report appears. Similar language appears in s 50 of the Federal Court of Australia Act and s 4(2) and s 11 of the Contempt of Court Act 1981 (UK). It was the test applied by courts with an inherent jurisdiction to make non-publication orders: John Fairfax Publications Pty Ltd v District Court of NSW (at [38]).

29 A number of authorities are cited in the Discussion Paper (at [10.92]) as authority for the proposition that the test for making a suppression or non-publication order should be that it be "necessary". Of those authorities, the clearest statement, and that which appears to underlie the form of s 8, appears in John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 (at 476 - 477) per McHugh JA (Glass JA agreeing):

"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." (Emphasis added)

John Fairfax & Sons Ltd v Police Tribunal (NSW) was the principal authority on the subject of making non-publication orders in New South Wales prior to the enactment of the CSPO Act: John Fairfax Publications Pty Ltd & Anor v District Court of NSW (at [38]). French CJ referred to this passage with approval in Hogan v Hinch (at [21]).

30 The necessity requirement may also be stated by quoting Isaacs J's statement in R v Macfarlane; Ex parte O'Flanagan and O'Kelly [1923] HCA 39; (1923) 32 CLR 518 (at 549) (approved by the plurality (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) in Hogan v Hinch (at [87]):

"The final and paramount consideration in all cases is that emphasized in Scott v Scott namely, 'to do justice' (Viscount Haldane LC). All other considerations are means to that end. They are ancillary principles and rules. Some of them are so deeply embedded in our law as to be elementary and axiomatic, others closely approach that position. Of the latter class is publicity, which can only be disregarded where necessity compels departure, for otherwise justice would be denied to those whom Earl Loreburn termed 'the parties entitled to justice.' "

31 Significantly, an order is not "necessary" if it appears to the court "to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some 'balancing exercise', the order appears to have one or more of those characteristics": Hogan v Australian Crime Commission (at [31]). Further, it is not a sufficient basis for such an order that the information is inherently confidential as distinct from personal or commercial information the value of which as an asset would be seriously compromised by disclosure: Hogan v Crime Commission (at [38]).

Open justice

32 By way of reinforcement of the proposition in [31], s 6 of the CSPO Act requires the court when considering whether to make an order under the Act to "take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice". The principle of open justice is one of the most fundamental aspects of the system of justice in Australia: John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; (2004) 61 NSWLR 344 (at [18]) per Spigelman CJ (Handley JA and Campbell AJA agreeing). Open justice ensures public confidence in the administration of justice: see Moti v R [2011] HCA 50 (at [100]) per Heydon J; Hogan v Hinch (at [20]) per French CJ; R v Tait (1979) 46 FLR 386 (at 401 - 403) per Brennan, Deane and Gallop JJ . It is unnecessary to add to the large body of judicial opinions discussing the concept. It is sufficient, in our view, to illustrate the proposition embedded in s 6 by referring to Lord Atkinson's statement in Scott v Scott [1913] AC 417 (at 463) , that "in public trial is [to be] found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means of winning for it public confidence and respect."

33 "The entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public": John Fairfax Publications Pty Ltd v District Court of NSW (at [20]). Media interests had standing at common law to be heard on the making of orders affecting the publication of court proceedings (see generally John Fairfax Group Pty Ltd (Receivers and Managers appointed) v Local Court of New South Wales (1992) 26 NSWLR 131) a position now enshrined in s 9(2)(d), CSPO Act at least insofar as a "news media organisation" is concerned.

34 A number of exceptions to the principle of open justice are recognised. Viscount Haldane VC referred to two in Scott v Scott (at 437) as being "cases of wards of Court and of lunatics [where] the Court is really sitting primarily to guard the interests of the ward or the lunatic [and] [i]ts jurisdiction is ... parental and administrative, and the disposal of controverted questions is an incident only in the jurisdiction" and "litigation as to a secret process, where the effect of publicity would be to destroy the subject-matter ...which stands on a different footing [and] [t]here it may well be that justice could not be done at all if it had to be done in public". (See also the Earl of Halsbury (at 441) - (443); Earl Loreburn (at 446); Lord Atkinson (at 450) - (451), (462); Lord Shaw of Dunfermline (at 482) - (483)). His Lordship then said (at 437 - 438):

"As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. The question is by no means one which, consistently with the spirit of our jurisprudence, can be dealt with by the judge as resting in his mere discretion as to what is expedient. The latter must treat it as one of principle, and as turning, not on convenience, but on necessity.

I think that if the principle in cases of secret process be what I have stated, it affords guidance in other cases. ... [U]nless it be strictly necessary for the attainment of justice, there can be no power in the Court to hear in camera either a matrimonial cause or any other where there is contest between parties. He who maintains that by no other means than by such a hearing can justice be done may apply for an unusual procedure . But he must make out his case strictly, and bring it up to the standard which the underlying principle requires. He may be able to shew that the evidence can be effectively brought before the Court in no other fashion. He may even be able to establish that subsequent publication must be prohibited for a time or altogether. But this further conclusion he will find more difficult in a matrimonial case than in the case of the secret process, where the objection to publication is not confined to the mere difficulty of giving testimony in open Court. In either case he must satisfy the Court that by nothing short of the exclusion of the public can justice be done. The mere consideration that the evidence is of an unsavoury character is not enough, any more than it would be in a criminal Court, and still less is it enough that the parties agree in being reluctant to have their case tried with open doors. " (Emphasis added)

35 Lord Loreburn said (at 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."

Lord Loreburn's statement was regarded as indicating the general approach by Viscount Dilhorne in Attorney General v Leveller Magazine Ltd [1979] AC 440 (at 457).

36 As Brereton J said (Suppression Order decision (at [11]), referring to John Fairfax Group Pty Ltd (Receivers and Managers Appointed) and Another v Local Court of New South Wales (1991) 26 NSWLR 131 (at 141) per Kirby P), another "well-established illustration was in blackmail and extortion cases", where:

"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."

37 A further exception is where disclosure of the information would seriously affect its commercial value: Australian Broadcasting Commission v Parish (1980) 43 FLR 129 at 133; Hogan v Crime Commission (at [42]).

38 None of these exceptions apply in the present case.

The administration of justice

39 The concept of the administration of justice is multi-faceted. We doubt whether a single statement can capture the connotation it carries in a range of contexts. As Young JA has said (at [86]) as used in s 50 of the Federal Court of Australia Act , "it is,... a reference to the public interest that the court should endeavour to achieve effectively the object for which it was appointed to do justice between the parties": Australian Broadcasting Commission v Parish (at 133) per Bowen CJ.

40 Mahoney JA (with whom Hope AJA agreed) captured the concept in John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 (at 161) , when (after referring to McHugh JA's statement in John Fairfax & Sons Ltd v Police Tribunal (NSW) (at 355)) he said

"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. ... 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 kind 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 restricted 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."

The effect of parties' agreements

41 The parties to the proceedings entered into a Deed pursuant to cl 20 of which they agreed that "disputes arising under this deed" should be dealt with first by confidential mediation and, if that failed, by confidential arbitration. It also contained cl 20.8.

42 Party autonomy is said to be "fundamental in modern arbitration law" and, to find reflection in legislative recognition of parties' right "to agree about how their commercial disputes are to be resolved subject to, inter alia such safeguards as are necessary in the public interest": s 1C, Commercial Arbitration Act 2010; s 1 Arbitration Act 1996 (UK). "[P]arties value English arbitration for its privacy and confidentiality": Department of Economics, Policy and Development of the City of Moscow v Bankers Trust Co [2004] EWCA Civ 314; [2005] QB 207 (at [1], [30]) per Mance LJ (Carnwath LJ agreeing); see also Fiona Trust & Holding Corp v Privalov [2007] UKHL 40; [2008] 1 Lloyd's Rep 254 (at [6]) per Lord Hoffman; Thoroughvision Pty Ltd v Sky Channel Pty Ltd [2010] VSC 139 (at [16] - [17]).

43 The private character of the arbitration hearing is "something that inheres in the subject matter of the agreement to submit disputes to arbitration". It is said that "[t]he efficacy of a private arbitration will be damaged, even defeated, if proceedings in the arbitration are made public by the disclosure of documents relating to the arbitration": Esso Australia Resources Ltd v Plowman (Minister for Energy & Minerals) [1995] HCA 19; (1995) 183 CLR 10 (at 26, 27) per Mason CJ, Brennan and McHugh J agreeing.

44 However, as Mason CJ explained in Esso Australia Resources Ltd v Plowman (Minister for Energy & Minerals) (at 27ff) in rejecting the view that confidentiality is an essential characteristic of a private arbitration, privacy is not synonymous with confidentiality. To secure confidentiality an express provision may be necessary, although even that may not bind persons such as witnesses not parties to the arbitration agreement. It is no doubt for that reason that cl 20.8 appears in the Trust Deed.

45 According respect to party autonomy does not mean that everything associated with a private arbitration wears a mantle of confidentiality. Even where an arbitration hearing has been conducted in private pursuant to a court order and even recognising that "[p]arty autonomy requires the court so far as possible to respect the parties' choice of arbitration", once a court's supervisory jurisdiction is invoked, the fact the arbitration was held in private is only a factor relevant to the question whether the proceedings should be heard in open court: Department of Economics, Policy and Development of the City of Moscow v Bankers Trust Co (at [28], [30], [34] - [36]).

46 Scott v Scott , it will be recalled, was a case where the parties to a nullity suit had agreed that it should be heard in camera. The House of Lords held that the Probate, Divorce and Admiralty Division had no power to hear the suit (or other matrimonial suit) in camera in the interest of public decency. Viscount Haldane VC (at 439) said, "the order was made in reality for the benefit of the parties who concurred in asking for it, and was therefore made under a mistaken impression as to the law".

47 In R v Legal Aid Board; Ex parte Kaim Todner (a firm) [1999] QB 966 (at 977) Lord Woolf MR emphasised the proposition that the parties' agreement that proceedings, or particular aspects of them, should be heard in camera or be subject to a non-publication order was not determinative, saying:

"(4) ...Sometimes the importance of not making an order, even where both sides agree that an inroad should be made on the general rule, if the case is not one where the interests of justice require an exception, has been overlooked. Here a comment in the judgment of Sir Christopher Staughton in Ex p P (1998) Times, 31 March, is relevant. In his judgment, Sir Christopher Staughton states: 'When both sides agreed that information should be kept from the public that was when the court had to be most vigilant.' The need to be vigilant arises from the natural tendency for the general principle to be eroded and for exceptions to grow by accretion as the exceptions are applied by analogy to existing cases. This is the reason it is so important not to forget why proceedings are required to be subjected to the full glare of a public hearing. It is necessary because the public nature of proceedings deters inappropriate behaviour on the part of the court. It also maintains the public's confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties' or witnesses' identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely. If secrecy is restricted to those situations where justice would be frustrated if the cloak of anonymity is not provided, this reduces the risk of the sanction of contempt having to be invoked, with the expense and the interference with the administration of justice which this can involve."

Conclusion

48 We are conscious of the heavy burden a party seeking a s 46(4) review has to discharge to have a Judge of Appeal's order set aside. Such an application is not an appeal: s 19(2), Supreme Court Act ; Uniform Civil Procedure Rules 2005 51.2. In order to succeed, the plaintiff beneficiaries must demonstrate that the judge erred in principle or that the judge's decision was plainly wrong: Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; (2004) 60 NSWLR 143 (at [4], [6]); Kiri Te Kanawa v Leading Edge Events Australia Pty Ltd [2007] NSWCA 274 (at [14]) (per Giles JA, Ipp and Basten JJA agreeing); Lo v Iverach [2009] NSWCA 92 (at [ 29]) (Allsop P, Giles and Macfarlan JJA). Although these tests bear similarities to those applied in reviewing a discretionary decision ( House v R [1936] HCA 40; 55 CLR 499), a decision to make a suppression order is not a discretionary one: Hogan v Australian Crime Commission (at [33]).

49 In our view, with respect, Tobias AJA relevantly erred. His Honour failed to approach the question whether a suppression order should be granted on a basis which has the least adverse impact upon the open justice principle: see [26] above.

50 Tobias AJA made the order under s 8, at least in part, to give effect to the maxim pacta sunt servanda (agreements are to be kept). He also held that publication would render any appeal nugatory presumably on the basis set out in pars [32] and [33] of his judgment that if a stay was granted the trustee's response and the ultimate resolution of the proceedings would be confidential and there would be significant pressure on Mrs Rinehart to make public her response and the ultimate resolution of the proceedings.

51 It is well accepted that the Court will, in appropriate circumstances, give effect to agreements to arbitrate by ordering a stay of proceedings brought in breach of the arbitration agreement. That jurisdiction recognises the party autonomy to which we have referred. However, as is apparent from the foregoing discussion, that is not determinative of the question whether, on an application for such a stay, it is necessary for the proper administration of justice for the Court to make a suppression order to give effect to a provision such as cl 20.8 prohibiting disclosure of the nature of the dispute both before, during and after the arbitration proceedings. Tobias AJA, with respect, appears to have treated it as such. In our view, his Honour erred (at [19]) in treating the fact that the parties had agreed to the cl 20.8 clause as effectively determining the question whether a suppression order should be made.

52 His Honour, with respect, was somewhat dismissive (at [30]) of the plaintiff beneficiaries' submission about the public interest in the determination of a dispute involving the alleged misconduct of a trustee. As we have said, the plaintiff beneficiaries make allegations of breach of trust and seek that the Court invoke its statutory power to remove a trustee. It is not suggested that proceedings were brought for a collateral purpose or that the disclosure of the materials would in have any effect on the value of the assets of the trust or other assets of the parties. The proper conduct of trustees is a matter which warrants close public scrutiny. It was a proper factor to take into account in determining whether a suppression order was necessary.

53 Tobias AJA also erred in our opinion in concluding that the failure to make a suppression order would render the proceedings nugatory. Disclosure of the information the subject of the suppression order will not "cause an entire destruction of the whole matter in dispute": Hogan v Hinch (at [21]). The trustee, if successful in obtaining a stay, will have the benefits of the substance of the allegations and matters concerning the trust being considered in a private arbitration rather than a public forum. This would seem to us to be the primary purpose of the arbitration/mediation provisions in the Deed. Such advantages remain irrespective of the fact that the allegations made against her have been publicly disclosed.

54 Tobias AJA's concern that if a suppression order was not made the allegations against the trustee would be in the public domain but her response would be confidential did not, in our view, demonstrate the order was necessary: "In general ... parties and witnesses have to accept the embarrassment and damage to their reputation and the possible consequential loss which can be inherent in being involved in litigation": R v Legal Aid Board; Ex parte Kaim Todner (a firm) (at 978). It is true that Lord Woolf MR went on to say that: "[t]he protection to which they are entitled is normally provided by a judgment delivered in public which will refute unfounded allegations", but that does not, in our view, detract from the force of his previous observation. It is the price of open justice that allegations about individuals are aired in open court. Such individuals, particularly if they are parties, can make their response to such allegations public in the same forum. The media, the vehicle by which such allegations are usually published to the world would be obliged to publish any response to ensure any report of the proceedings was fair: s 29, Defamation Act 2005.

55 In our view, having regard to the nature of the proceedings it was neither "necessary to prevent prejudice to the administration of justice" and, further contrary to the requirement to treat open justice as "a primary objective" referred to in s 6 of the Act for the Court to exercise its power under s 8 to suppress information of the nature of that caught by Tobias AJA's orders. Suppression of such information would undermine, rather than ensure, public confidence in the administration of justice.

56 It is unnecessary to deal with the question of the construction of s 7 both because of the conclusion we have reached and because it may not have been clearly articulated before either Brereton J or Tobias AJA.

57 YOUNG JA: This is an application to review a decision of Tobias AJA to impose a suppression order prohibiting publication of the majority of the documents filed and orders made in these proceedings.

58 These proceedings were instituted by beneficiaries under a family trust against the trustee of that trust. They are three children of the first defendant. I will refer to the trustee as "the first defendant". The remaining child, a daughter who supports the first defendant, is the second defendant.

59 The trust deed provided that "disputes under this deed" should be determined confidentially by private mediation and/or arbitration. I will refer to its terms in greater detail later.

60 The defendants moved for a permanent stay in order to carry out the terms of the deed. Originally Brereton J considered that the present proceedings were "under this deed". However, when he became more familiar with the issues, he altered that view. His Honour dismissed the motion for a permanent stay on 7 October 2011 ( Welker v Rinehart [2011] NSWSC 1094).

61 On 14 October, Brereton J granted a suppression order to protect the rights of the defendants: see Welker & Ors v Rinehart & Anor (No 2) [2011] NSWSC 1238.

62 The order made by Brereton J was:

Pursuant to (NSW) Court Suppression and Non-Publication Orders Act, 2010, s 10, and alternatively pursuant to the inherent jurisdiction of the court, I make an interim suppression order upon the ground referred to in s 8(1)(a) of that Act, that such order is necessary to prevent prejudice to the administration of justice, prohibiting disclosure by publication or otherwise of information as to any relief claimed in the proceedings or any pleading evidence or argument filed read or given in the proceedings. This order has effect, subject to revocation by this Court, until the expiration of 7 days from the date on which my written reasons for judgment given orally on 7 October 2011 are published on the Court's website, and thereafter if within that period the first defendant or second defendant has filed a summons for leave to appeal until the determination of that application or further order of this Court or of the Court of Appeal. Pursuant to (NSW) Court Suppression and Non-Publication Orders Act 2010, s 11, it is specified that this order applies throughout the Commonwealth of Australia. Pursuant to (NSW) Court Suppression and Non-Publication Orders Act 2010, s 9(4), this order does not prohibit:

(a) Disclosure or publication of any judgment given in these proceedings to date nor of any orders made in the proceedings.

(b) Disclosure to Hancock Prospecting Pty Ltd nor to the professional advisers and potential witnesses or funders of any party to the proceedings (including Hancock Prospecting Pty Ltd), in every case only for the purposes of the proper conduct of these proceedings and/or the proposed appellate proceedings and provided that prior to such disclosure the person to whom the disclosure is to be made has been informed of this order and has acknowledged that they are bound by this order.

63 On 28 October 2011 a summons seeking leave to appeal from his Honour's order dismissing the motions for a stay was filed in this Court. On the same day, notices of motion were filed by them seeking a number of orders. This included seeking a further order pursuant to the Act prohibiting the disclosure by publication or otherwise of any information as to " the relief claimed or any pleading, including the Summary of Argument, the Summons, the draft Notice of Appeal, evidence or argument filed read or given in " the proceedings the subject of the summons for leave to appeal. Consequential orders were also sought.

64 The relevant legislation is the Court Suppression and Non-publication Orders Act 2010 ("the Act") . Sections 6, 7 and 8 are as follows:

6 Safeguarding public interest in open justice

In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

7 Power to make orders

A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of:

(a) information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court, or

(b) information that comprises evidence, or information about evidence, given in proceedings before the court.

8 Grounds for making an order

(1) A court may make a suppression order or non-publication order on one or more of the following grounds:

(a) the order is necessary to prevent prejudice to the proper administration of justice,

(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,

(c) the order is necessary to protect the safety of any person,

(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency),

(e) it is otherwise necessary in the public interest for the order to be made and that pubic interest significantly outweighs the public interest in open justice.

(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.

65 The relevant orders in the instant case were made under (a), that is, that the orders were necessary to protect the proper administration of justice.

66 The motions in this Court came before Tobias AJA on 31 October and were decided by his Honour on the same day ([2011] NSWCA 345). In addition to the parties before Brereton J, four sets of media interests were heard.

67 Tobias AJA made the following orders:

1. Pursuant to s.7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (Act), and on the grounds referred to in s 8(1)(a), a suppression order is made prohibiting the disclosure by publication or otherwise of any information as to the relief claimed or any pleading, the Summary of Argument, submissions, the draft Notice of Appeal, evidence or argument filed, read or given in these proceedings, and including the contents of the red book, blue book, black book and orange book but not including the Summons seeking Leave to Appeal or the pronounced or published judgment of Tobias AJA.

2. Pursuant to s.12 of the Act, the suppression order in paragraph 1 above operates until determination of the Applicant's application for leave to appeal is determined or until further order of the Court.

3. Pursuant to s.11 of the Act, the suppression order in paragraph 1 above applies throughout the Commonwealth.

4. That appeal number 2011/344306 and appeal 2011/344307 be heard at the same time.

5. That the application for leave to appeal be determined concurrently with the appeal.

6. The hearing for leave to appeal with the hearing of the appeal be expedited.

68 Following those orders, the concurrent hearing of the application for leave to appeal and, if appropriate, the appeal itself has been fixed for early February 2012.

69 The media interests have applied for a review of Tobias AJA's decision before a Court of Appeal consisting of three judges pursuant to s 46(4) of the Supreme Court Act 1970. Although this procedure is commonly called a "review", the sub-section actually speaks in terms of an application to discharge or vary the single judge of appeal's determination.

70 The authorities, which are collected in the decision of this Court in Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; 60 NSWLR 143, 145 et seq ([4] and following), make it clear that a principle akin to that expressed in House v The King [1936] HCA 40; 55 CLR 499 will need to be applied. See also Wentworth v Wentworth (1994) 35 NSWLR 726 and Patrick v Howorth [2002] NSWCA 285 [10].

71 The application for review was heard on 7 December 2011. Mr B W Walker SC and Mr A T S Dawson of counsel appeared for the media interests (whom I will call "the applicants"), Dr A S Bell SC and Mr D T C Thomas of counsel appeared for the first three respondents (the plaintiffs before Brereton J ("the plaintiffs")), Mr B Coles QC and Mr P Kulevski appeared for the first defendant and Mr F Kunc SC and Mr P W Flynn appeared for the second defendant.

72 The plaintiffs joined with the applicants in seeking a discharge of Tobias AJA's orders. Although those orders were couched in terms of suppression orders, both in submissions and in these reasons the words "suppression" and "non-publication" are used interchangeably.

73 Mr Walker and Mr Dawson accepted in their written submissions that to succeed on a review, an applicant needs to demonstrate an error of principle or that the decision in question was plainly wrong.

74 The applicants say that Tobias AJA committed a number of errors. These may be summarised:

(a) His Honour erroneously construed the Act as adding to the list of exceptions to the principle of open justice recognised at common law;

(b) His Honour erred by equating the question of proper administration of justice with the principle of pacta sunt servanda ;

(c) His Honour failed to apply correctly the test of necessity;

(d) His Honour erred in discounting the principle of open justice;

(e) His Honour effectively reversed the onus by elevating the rights of the parties over the principle of open justice;

(f) His Honour confused the concepts of public interest and administration of justice;

(g) The orders made by Tobias AJA exceeded those authorised by s 7 of the Act;

(h) The orders made by the judge are of no utility.

75 I need to consider the deed to which I have earlier referred in more detail. The key provision is clause 20 which is headed "CONFIDENTIAL MEDIATION/ARBITRATION. The chapeau provides:

"in the event that there is any dispute under this deed then any party to this deed who has a dispute with any other party to this deed shall forthwith notify the other party or parties with whom there is a dispute and all other parties to this deed ('Notification') and the parties to this deed shall attempt to resolve such difference in the following manner".

76 Clause 20.1 which is headed "Confidential Mediation" provides in para (a):

"the disputing parties shall first attempt to resolve their dispute by confidential mediation..."

77 Clause 20 proceeds by mandating confidential arbitration if necessary. Clause 20.8 then provides:

"Confidentiality of Proceedings

The dispute the subject of the mediation/arbitration, the mediation and arbitration hearing and submissions thereto and the decision of the mediation and/or arbitration shall be kept confidential."

78 The basal propositions of those attacking the orders made by Tobias AJA (putting aside for a moment the submissions that at least part of the order was beyond power) are that the Act makes it clear that open justice is the primary aspect of the administration of justice on which the Act is focussed and that the orders made by Tobias AJA effectively allow a private agreement as to confidentiality to outflank the purpose of the Act.

79 "Open justice" is not defined in the Act. In my view, the essence of an open court is a court where a member of the public may, as of right, without fee, enter the open door of the courtroom and hear what is said and see what is done. What happens in the courtroom must be done publicly and in open view, ( Scott v Scott [1913] AC 417, 431; Russell v Russell [1976] HCA 23; 134 CLR 495, 520).

80 Although what happens in modern commercial and equity courts and in the Court of Appeal is a watered down version of open justice as was in the minds of 19 th century lawyers, it is still, in my view, an open court. It may be that a complete stranger to the litigation who just enters a court for interest may have little chance of understanding the case. However, much valuable time is saved by written submissions and the judges prereading the vital documents. What is read is made available on request for the press and interested members of the public to read and this is sufficient for the court still to qualify as an open court.

81 As Tobias AJA observed, s 6 of the Act does not say that open justice is the primary objective of the administration of justice, but a primary objective .

82 The submissions of Mr Walker and Dr Bell suggested that this was a meaningless distinction. With respect I disagree.

83 Even statutes phrased in stronger language which directed courts to the paramount concern, have been properly construed as not excluding other concerns.

84 A good example is s 136 of the Victorian Marriage Act 1928 which the High Court considered in Lovell v Lovell [1950] HCA 52; 81 CLR 513. The Act provided that in child custody cases "the court in deciding that question shall regard the welfare of the infant as the first and paramount consideration". The High Court held that even those words did not preclude other relevant considerations: see also Priest v Priest (1963) 9 FLR 384.

85 The statute provides that open justice is a primary objective. However, it is clear that the courts do not exist merely to be a ready source of material for the media.

86 In Australian Broadcasting Commission v Parish (1980) 43 FLR 129, 133; 29 ALR 228, 234, Bowen CJ considered what is covered by the term "proper administration of justice" in the Federal counterpart to s 8(1)(a) of the Act. His Honour said:

"The section refers to preventing 'prejudice to the administration of justice'. This is not a reference to the need to preserve open justice. It is... a reference to another public interest, that is, the public interest that the court should endeavour to achieve effectively the object for which it was appointed: to do justice between the parties."

87 A primary object for courts to fulfil is to provide an independent and impartial tribunal for the settling of disputes between parties. Fulfilment of such a purpose is best served by open and public hearings. However, the means of achieving the purpose must not be elevated above the purpose.

88 It must not be gainsaid that the public interest in open justice is extremely important. As the Victorian Court of Appeal said in Re Applications by Chief Commissioner of Police [2004] VSCA 3; 9 VR 275, 286 [25]:

"The principle of open justice is deeply entrenched in our law. It rests upon a legitimate concern that, if the operations of the courts are not on public view as far as possible, the administration of justice may be corrupted. A court is 'open' when, at the least, members of the public have a right of admission. From this it may be thought ordinarily to follow that the media, in their various forms, are also entitled to communicate 'to the whole public what the public has a right to hear and see'."

89 However, one must not be borne away by rhetoric about open justice or the rights of the public to see in their newspapers or television or hear on radio everything that happens in the courts. As Bowen CJ pointed out in Parish , the role of the civil courts is to deal with and resolve the dispute between the parties and the broad concept of administration of justice is how the courts can achieve this.

90 The High Court considered the Federal Court equivalent of s 8 of the Act in Hogan v Australian Crime Commission [2010] HCA 2; 240 CLR 651, 664. Although the High Court distinguished both the Parish case and Re Chief Commissioner of Police, the Court at [30] endorsed the approach to what was involved in the concept of "administration of justice" taken by Bowen CJ in the Parish case.

91 Dr Bell put that, just because a decision is cited in the High Court, does not mean that it is adopted for all purposes. That is correct. However, even though the High Court distinguished Parish on the grounds that it was a breach of confidentiality case, in my view [30] shows that the Court accepted Bowen CJ's analysis.

92 The applicants put that Tobias AJA confused what is prejudicial to a party to proceedings and what is prejudicial to the administration of justice. Further, that his Honour failed to realise that whilst institution of proceedings contrary to the deed might be an abuse of process, it would not be a situation of breach of confidentiality.

93 Whilst not conceding that the relevant deed had the effect of an agreement that the present dispute not be litigated publicly, the applicants put that it must be quite plain that parties' private agreement cannot be sufficient to ground a non-publication order made on the basis of the protection of the proper administration of justice.

94 The applicants note that both Tobias AJA and Brereton J recognised that the fact of such an agreement was insufficient, but fell into the error of assuming that there was an agreement to preserve confidentiality. They put that by taking this view, Tobias AJA discounted the emphasis given in s 6 to ensuring open justice.

95 Whilst it may be that in some situations an agreement to arbitrate differences might not carry with it the implication that the reason for provision is the preservation of confidentiality, it seems to me that in this particular case, the judges who have considered the case were justified in taking the view that they should infer that that was the reason for the relevant provision in the deed.

96 Paragraph [47] of Tobias AJA's judgment might be read as indicating that the judge was thinking in terms of the disservice done to the public by sections of the media highlighting "the more juicy parts of the dispute between the parties". However, for better or worse, the principle that courts be held in public, the principle of open justice, means that those who hear what was said in court are not restrained from publishing, not only the material that the right thinking member of the public would appreciate knowing, but also the peripheral material which might titillate other readers.

97 Mr Coles puts that the concept of administration of justice is a multi-faceted one. Whilst the objective of open justice is of fundamental importance, that does not lead in every case to that objective being given determinative weight.

98 Mr Coles puts that the ground of review that Tobias AJA expanded the number of concerns that might operate to deny open justice to include some not known at common law goes nowhere as the exercise conducted by his Honour went to construing the Act as it currently stands.

99 I agree with this submission. The Act was carefully crafted to be self contained. However, s 4 makes it clear that the inherent power at common law to uphold the integrity of the court process remains. It is thus necessary to examine the common law position. Further, the approach of the courts under the inherent power provides some guidance as to the approach to be adopted when exercising the statutory power.

100 The common law position was explained in this Court by McHugh JA in John Fairfax & Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465, 476-7 where his Honour said:

"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."

101 That passage has been affirmed on many occasions since; see eg John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; 61 NSWLR 344, 356 and following.

102 This leads on to the consideration of the semantic significance of the word "necessary" in section 8 of the Act.

103 The English word "necessary" is often employed both in the sense of the Latin "necessari" (to do something that needs to be done) and "oportet est" (it behoves one to do it).

104 There has been some consideration of the word in decisions under s 50 of the Federal Court of Australia Act 1976 (Cth) .

105 In Parish at 134, 234, Bowen CJ noted that, whilst it is not possible to define in advance the relevant degree of prejudice, the fact that the word "necessary" is used in conjunction with matters such as the security of the Commonwealth, shows that Parliament was not dealing in trivialities.

106 This passage was relied on by the High Court in Hogan v Australian Crime Commission [2010] HCA 2; 240 CLR 651, 664 [30] to say that the word "necessary" is a strong word. The High Court at [31] approved what Fullerton J and the NSW Court of Appeal said in Attorney-General for NSW v Nationwide News Pty Ltd [2007] NSWCA 307; 73 NSWLR 635, 641 [34] that it is insufficient that the court reaches the view that it is merely "convenient, reasonable or sensible", that suppression serves the public interest or that on balancing the interests that result is attained.

107 This same emphasis is provided in the passage I have quoted from McHugh JA in the former Fairfax case, that what is required to displace open justice must be "really necessary" for the proper administration of justice.

108 Dr Bell points out that the open judgments of Brereton J and Tobias AJA have already informed the general public of the basal allegations, including that three of the first defendant's children are seeking her removal as trustee for alleged misconduct in that office. Thus, he puts, the orders made by Tobias AJA are of no utility.

109 The only impact of this submission is to go to the view that it is therefore not necessary to make a suppression order or, at the very least, a suppression order as extensive as the one that was made. It does to my mind weaken the argument that the order made by Tobias AJA was necessary for the administration of justice.

110 Although Tobias AJA did not devote space to considering the degree of necessity required to base an order for suppression, the concluding paragraphs of his Honour's reasons show that he certainly had at the forefront of his mind that he must not make a suppression or non-publication order except where he found that it was necessary to do so for the purposes of s 8(1)(a) of the Act. There was no suggestion that it was sensible to make the orders to preserve the status quo until the beginning of the new term.

111 A basic complaint by those seeking review is that Tobias AJA overemphasised the principle pacta sunt servanda and underplayed the principle that a primary consideration was the principle of open justice.

112 The first defendant's counsel point out that Tobias AJA did not say that in every case where the parties have bargained for confidentiality that a suppression order should be made, but on the facts of the instant case, such an order should be made. It was significant in the instant case that there was a sense of some litigants attempting to gain leverage in the adversarial process by publicly deploying material in breach of an agreement that the material remain confidential.

113 There may well be cases where confidentiality will be a secure ground for making a non-publication or suppression order. Almost always this will be in the situation where the person seeking suppression has property in the nature of confidential information or trade secrets; see eg David Syme & Co Ltd v General Motors-Holden's Ltd [1984] 2 NSWLR 294.

114 There is no question of there being such a property right in the instant case. All that exists is a contractual right between the parties that each of them will keep confidential any dispute between them.

115 I do not wish to exclude the possibility that there may be a situation where interests of confidentiality short of a property right might be sufficient to justify a suppression order, but it would be extremely unlikely for this to occur.

116 It is put that the fact that the parties have agreed on confidentiality and that the Court cannot properly entertain their dispute if the resolution of their dispute takes place in public is sufficient to say that the principles of the administration of justice between the parties trump the principle of open justice.

117 It is certainly a relevant factor in cases not involving the Act that, if parties have contracted for confidentiality, the Court will, as part of its role to assist parties resolving their disputes, give weight to their plea for confidentiality if it can be done consistently with other duties of the Court.

118 Often the reason for parties electing arbitration is the desire to keep matters confidential. This is not necessarily against the public interest as is shown by the fact that in some countries, judges may sit as arbitrators or refer vital questions out to referees.

119 However, it is relevant that the traditional way of stopping court proceedings pending arbitration is, as in the present application, applying for a permanent stay. Even if the reason why the applicant contracted for arbitration was confidentiality, as far as I am aware, such applications for stay were never heard in camera.

120 Another way of putting the defendants' argument is that: (1) civil courts exist to resolve parties' disputes; (2) the justice they administer is to achieve that end; and (3) if parties have contracted that the resolution process is to be held in camera then (4) it is in the interests of the administration of justice to observe that contract.

121 I was attracted to this set of propositions for a while, but two factors make me reject it. The first is the strong words in s 6 about a primary objective of open justice reinforced with the word "necessary" in s 8 and secondly, that breach of the contract as to confidentiality has other consequences.

122 The contract may lead to an injunction being given. As no proprietary right is involved, such an action would not be guaranteed of success. However, an action at law for damages for breach would not face that barrier. Moreover, publication in the media would probably not only increase the damages, but the media involved might possibly be liable for inducing a breach of contract.

123 The orders being reviewed were made after an ex tempore judgment which needed to be given as a matter of urgency. It would seem it was given after submissions that were necessarily abbreviated because of time constraints. Despite the high barrier against reversing decisions made by a single judge of appeal on review, I have reached the conclusion that the decision under review did not give sufficient regard to the principle of open justice and gave too much emphasis to contractual confidentiality.

124 Accordingly, I would favour the vacation of the orders of Tobias AJA.

125 I should note here that both Mr Walker and Dr Bell emphasised in submissions that this Court is only dealing with a very narrow issue and that is whether the non-publication order made by Tobias AJA based on s 8(1)(a) of the Act should be upheld. The Court is not to be concerned with whether the order could have been supported even partially under the inherent power nor whether an injunction, if sought, would have been granted, or with breach of contract. These submissions must be accepted.

126 For similar reasons the Court is not concerned that the non-publication order made by Brereton J against which there is no appeal, may cover the same territory as the order of Tobias AJA with the exception of new material created in the Court of Appeal.

127 Early on the morning of the hearing, Dr Bell SC for the plaintiffs, raised the additional issue that the orders of Tobias AJA were not orders within the limits of the Court's power under s 7 as they went beyond protecting the identity of the parties or witnesses or information about the evidence given in the proceedings.

128 This submission goes to the form of the order rather than whether any order should be made at all.

129 During the hearing, Dr Bell maintained that this point had always been before Tobias AJA, but he had not dealt with it.

130 There is some doubt in my mind as to whether this point was actually before Tobias AJA. This doubt is given reinforcement by the fact that Dr Bell decided to alert us to it especially on the morning of the hearing and its virtual absence from the written submissions. One can certainly find some slight mention of it in the transcript and submissions. However, his Honour did not deal with it, nor would it appear, did any counsel complain that his Honour had not addressed it and had made orders contrary to the submission.

131 Dr Bell repeatedly complained that the fault in this was that of the judge who gave an ex tempore judgment without due consideration. I reject this criticism. The case was an urgent one and the Court was bound to deal with it quickly. If there is any fault, it is with the counsel who heard the judge deliver his reasons and orders and yet did not draw his attention to the allegation that the orders were beyond power.

132 There is no need to prolong this matter as there was no objection to the point being considered on this review.

133 Section 7 of the Act refers to "information". That is a very wide term. However, the "information" to be protected is spelled out in s 7 namely:

(a) information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court, or

(b) information that comprises evidence, or information about evidence, given in proceedings before the court.

134 The orders of Tobias AJA suppress publication of:

"any information as to the relief claimed or any pleading, the Summary of Argument, submissions, the draft Notice of Appeal, evidence or argument filed, read or given in these proceedings, and including the contents of the red book, blue book, black book and orange book but not including the Summons seeking Leave to Appeal or the pronounced or published judgment of Tobias AJA".

135 Whilst it is clear that a suppression order is not to actually identify the material which is the information being protected by quoting it, it is also clear that all that can be suppressed is information about the parties or witnesses or material that is given in evidence.

136 It could be argued that it is only after the evidence has been given in court that it can be protected under the section. I consider that this is too narrow an interpretation of the section. In any event, there is no right of public access to affidavit evidence filed in court until it is read or deemed to be read in open court.

137 The order includes suppression of the pleadings in the case. There is no common law right to obtain access to a document filed in a court and held as part of the court record: John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; 62 NSWLR 512, 521.

138 In R v Clerk of Petty Sessions Hobart; Ex Parte Davies Brothers Ltd (1998) Tas R 283, 293, in a passage approved by Spigelman CJ in the Ryde Local Court case at 526 [65], Slicer J said:

"The making of a complaint, without more, is no more than a statement by a party...that it wishes to have a particular grievance... determined by a court...The making of a complaint does not attract the requirement of 'open justice' unless and until it becomes an issue between the parties."

139 Thus, unless the copy of the pleadings are provided to the media otherwise than from the court record, there is no right of access to them.

140 The order made by Tobias AJA which would appear to include them was thus mere surplusage. However, except insofar as the pleadings give information about the parties or the evidence to be led, they would not ordinarily come within the scope of s 7.

141 Even though there is mere surplusage, if I did not otherwise consider that the order should be vacated, it would need to have been reframed as orders of the court must be precisely framed.

142 I have considered the counter proposition that s 7, when considered with s 4, is not a limitation on the power that courts have to issue suppression orders, but merely a declaration in general terms of the power.

143 In view of the fact that this application is based solely on the statutory power, I do not do anything more than state this proposition.

144 I need to add observations on two other matters.

145 First, it was suggested in argument that the practice of judges at first instance of being very liberal in their acceptance of assurances by counsel that documents are commercially confidential is incorrect. I do not agree with that suggestion. There may be the occasional case where closer examination of those assurances are called for, but, generally speaking, especially at early stages of litigation, the practise is a good one in the interests of justice as a whole.

146 Secondly, Mr Walker put to us that we could be assisted by the way the Court Information Act 2010 complemented the Act under consideration.

147 The Court Information Act , No 24 of 2010 received royal assent on 26 May 2010 but has not yet come into operation. It deals in part with access by the media to court documents and proceedings. The Act currently under consideration, No 106 of 2010, was assented to on 29 November 2010 and is in force.

148 There does not appear to be any direct authority for the proposition that one can use an uncommenced Act as an aid to construction of legislation which is in force. Normally, one cannot use a later statute to construe an earlier one; see eg Ward v The Folkestone Waterworks Company (1890) 62 LT 321, 325 per Smith J. Although the Court Information Act is an earlier Act in point of assent, for some purposes one deals with statutes on the respective dates they come into operation: Black v Director-General of Education [1982] 2 NSWLR 714.

149 Where there are a series of Acts dealing with the same legislative scheme, one can seek help from other legislation in the scheme or indeed previous schemes: Hodgson v Crane [2002] NSWCA 276; 55 NSWLR 199, 207 [29] per Heydon JA with whom Sheller JA and Davies AJA agreed.

150 I have formed the view that, in accordance with Hodgson's case, it is legitimate to look at the Court Information Act as a statute constituting part of the same legislative scheme even though it has not commenced. The fact that it was passed before the Suppression Act shows that probably it was in the mind of Parliament when the Suppression Act was passed.

151 However, having said that, I do not see how reference to the Court Information Act is of any assistance to the questions of construction which we have to address.

152 It follows, that in my view the Court should make the following orders:

1. Discharge orders 1, 2 and 3 made by Tobias AJA on 31 October

2011;

2. Order that the defendants pay the applicants' costs of the review and of the hearing before Tobias AJA.

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Decision last updated: 21 December 2011