A win for open justice – suppression orders and freedom of the press

Last month, the Gazette of Law and Journalism reported on a lone, open justice boat bobbing about in a “sea of suppression orders” in NSW and Victoria (“Suppression City”, published 8 February 2017).

On this side of the continent, there appears to be better ‘open passage’ for the media reporting the goings on in WA’s courts.

Another open justice vessel docked at “Press Freedom Wharf” when Seven West Media succeeded in disposing of an application to suppress evidence in the high-profile defamation action by criminal law barrister Lloyd Rayney against the State of Western Australia.¹

The intriguing application was brought by Mr Rayney’s lawyers to suppress evidence to be given by Mr Rayney’s sister, Ms Raelene Johnston.  More precisely, orders were sought to suppress the fact Ms Johnston, a lawyer, is now a magistrate.

Supreme Court Justice John Chaney summarised the drivers for the application in this way:

The concern which is expressed is that her association with the plaintiff, and with the matters the subject of her evidence, may adversely impact on the ability of the witness to perform her functions as a magistrate.  Concern is expressed that it is not appropriate for defendants or other court participants to know the intimate details of the witness' personal life and relationships, which are outlined in her evidence, and identification of her employment has the potential to create prejudice to the proper administration of justice.

WA’s Chief Magistrate supported the suppression application by a letter that was put into evidence.  Chaney J summed up that evidence in this passage:

While expressing confidence in the magistrate's ability to preside in cases in accordance with her oath, the Chief Magistrate is concerned that there is potential for participants in cases before her to falsely impute to her feelings of animosity with the Western Australian police force by reason of her involvement in the matters which provide the factual foundation of the action before me.  The Chief Magistrate expresses concern that that perception may cause unnecessary applications for recusal being made to the witness, and complaints being made to him as head of the jurisdiction.

Counsel for Seven West Media, Tony McCarthy, drew heavily on the remarks of Fitzgerald P and Lee J in J v L & A Services Pty Ltd (No.2)²:

Finally, it is important to remember that what appears to be a more liberal approach involving the exercise of a discretionary power in the interests of an individual involves an erosion of fundamental rights and freedoms of the general public.  The occasional misuse or abuse of these rights and freedoms or other disadvantages associated with public information and discussion, which is sometimes misinformed, together with any resultant harm are part of the cost of living in a free, democratic society.  It is common for sensitive issues to be litigated and for information which is extremely personal or confidential to be disclosed.  It is of obvious concern that such a paramount principle as the requirement of open justice should not be whittled away on a case by case basis according to individual judges' subjective views of the merits or demerits of the claims to privacy of individual litigants.

Justice Chaney identified that his task in deciding whether to make the suppression orders sought was a consideration of whether the potential disruption to the administration of justice of concern to the Chief Magistrate and Magistrate Johnston outweighed either the public interest in there being open justice, or the public interest in the freedom of the press.

Kirby P’s observations in John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales³ were cited by his Honour with approval:

A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice.  Otherwise, powerful litigants may come to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported.

His Honour noted:

In the absence of any serious impediment to the witness' capacity to perform her function, the witness should not be treated any differently than other witnesses simply on the basis of her position and the fact that she is engaged in the administration of the law.

After navigating the competing currents, the court’s final berth was a finding that the facts of the case did not support interfering with the public having an unfettered access to information about Mr Rayney’s defamation action against the State.

The media respondents’ objections to the suppression order application were upheld, no suppression orders were made, and the principles of open justice won out.

Lavan comment

This decision reinforces the very important public interest in the courts being open and the cases before it being subject to public scrutiny, in particular by the media, who act as the eyes and ears of the broader community.

There is a heavy onus on an applicant who seeks to have some or all of the proceedings in which they are involved suppressed.

That said, as noted above, some commentators have discussed a higher incidence of suppression or non-publication orders being granted in some Australian jurisdictions compared with others.

In WA, the situation seems to be that our courts will be slow to put the private interests of applicants ahead of the public interest in the court’s being open and free to be reported upon by the media, paying homage to the mush quoted aphorism that “not only must justice be done; it must also be seen to be done”.