Secret justice

No public interest in what's interesting to the public ... Open justice takes a backseat as prevention of embarrassment trumps competing interests ... Rinehart ruling keeps family row under wraps for now ... Publication of slabs of interlocutory judgment in Styles v Clayton Utz off limits ... Clutz applied for a super-injunction to keep names under wraps 

Dawson: go-to man for suppression submissionsBusy Sydney barrister Sandy Dawson has down pat all the arguments for and against suppression orders. 

He's the go-to man for the media whenever the open justice principle looks like being junked on behalf of well-heeled litigants facing embarrassment. 

Sandy went down last month before Justice Brereton in the NSW Supremes after putting the open justice case against the iron ore queen Gina Rinehart. 

Some of Rinehart's kiddies applied ex parte for relief relating to a family trust set up by Lang Hancock for the benefit of his grandchildren and which has Gina as the trustee. 

Disputes about money are not unknown in the family. In April 2007 the children and their mother entered into a deed to keep the lid on disputes within this adornment to Australian family life. 

The deed required them to attempt to solve future eruptions by confidential mediation or arbitration. 

Brereton's suppression order prohibited the disclosure of "any information as to the relief claimed, or any pleading, or any evidence or argument filed, read or given in the proceedings".  

The application by the iron queen to stay the proceedings was dismissed by Brereton last week. Yet the suppression order remains in place until any appeal is determined.  

The upshot is that a warring family's private secrecy agreements are enforceable, at least for the time being, so as  to override the open justice principle. 

Prevention of embarrassment of itself is not supposed to be a sufficient ground to found an order suppressing the reporting of court proceedings. 

The administration of justice itself has to be imperiled. 

The Court Suppression and Non-Publication Order Act 2010 (NSW) says:  

"A court may make a suppression order or non-publication order on one or more of the following grounds ... 

s.8(1)(a) the order is necessary to prevent prejudice to the proper administration of justice...

8(1)(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." 

This presents a significant discretionary lake in which judges can paddle about. 

The "proper administration of justice" can sometimes be moulded to come to the aid of one or other of the parties to keep the lid on the unfortunate details, for reasons that are remote from preventing prejudice. 

*   *   *

Ashton: seeking to enforce alleged promises from cardboard kingFormer mistress to Dick Pratt, Shari-Lea Hitchcock, also recently sought to suppress the disclosure of evidence in Madison Ashton's case against Jeanne Pratt. 

Madison is seeking a small chunk of money, said to have been promised to her by the generous, randy and now deceased cardboard box mogul, Dick Pratt. 

Up popped Shari-Lea, who is not a party to the proceedings or a witness, wanting to stop publication of information "tending to reveal her identity and any evidence given or submissions made and the contents of documents filed or served or tendered in connection with them". 

Apparently this related to "scandalous allegations" in affidavits before the court. 

Brereton said the said that the allegations were gratuitous and had "practically nothing" to do with the plaintiff's cause of action. 

Francis Douglas, who appeared for Madison, said that some of the allegations would not be pressed and conceded that others could not be. 

The judge said this was the way to avoid the "problem" of scandalous allegations being aired in open court. 

However, the application by Hitchcock was that it would be detrimental to her and her 14-year-old daughter for the proceedings to be heard in public. 

Of itself, this would not meet the tests of "necessity" in the Court Suppression and Non-Publication Order Act. 

Brereton said: 

"In my view, the proper administration of justice will not be prejudiced if this case is heard in open court and in the absence of a suppression or non-publication order." 

Yet, the suppression came in by the back door, as it were - by undertakings from the plaintiff that the scandal would either be dropped completely or not pressed. 

Brereton then said that Hitchcock should identify those allegations in the affidavit evidence that go beyond what are necessary for proof of Madison's case and involve "some aspect of irrelevant scandal". 

That's a case of suppression without having a suppression order.  

*   *   *

Styles: keeping stuff in the bagApplications for suppression and no publication orders have taken up much time in  Bridgette Styles' sex discrimination against Clayton Utz. 

It was cross-vested from the Federal Court to the Supreme Court, which is better practiced at handling defamation cases with juries. 

The defendants have been arguing that important affidavits and even an interlocutory judgment in the SDA case should be either suppressed or significantly edited because they may prejudice the administration of justice - namely a jury trial of the defamation action in February. 

On this occasion Sandy Dawson was for Clayton Utz and strenuously put the case for suppression of McCallum's interlocutory judgment as well as an affidavit from Styles' solicitor Bill Kalantzis. 

As he put it, the aim is to keep stuff "in the bag". 

The parties agree there are "non-publication issues", particularly in relation to email exchanges between people at Clutz.

Dawson said there is a capacity that, if released, the affidavit and parts of the judgment would "paint both parties in an unfavorable light". 

The emails "suggest guilt on Izzo's part [and] paint him as responsible in some way". 

One of the emails is "jocular ... but reporting it would still give rise to an assessment of gilt". 

Dawson submitted that publication has the "potential to cast both parties in an unfavorable light" and this could prejudice next year's jury trial. 

Dawson urged the judge to extend the non-publication order to Kalantzis' affidavit. 

Consequently, the judgment published by Justice Lucy McCallum dealing with these applications on the pleadings has been redacted.  

McCallum rejected his proposal that the parties prepare a "proper" version of reasons that wouldn't be prejudicial down the track. 

She said that was something she would do after further argument, but she recognized that as things stand "the prospect of sensational reporting is high". 

On this basis alone large parts of the SDA trial itself may have to be subject to non-publication orders. 

In June counsel for Clayton Utz, Bruce Hodgkinson SC successfully applied for the names of certain people at the firm referred to in particulars to be made the subject of a temporary non-publication order. 

The issue here was that there might be "injustice and unfair prejudice" from the disclosure of untested allegations. 

This "injustice" peculiarly affects lawyers and other professional types who believe the open justice principle should yield to the protection of their names in connection with potentially embarrassing proceedings. 

McCallum J said:  

"I consider it appropriate and in accordance with the overriding purpose to take a practical approach to the present application." 

The interim order is still in place, although on October 14 four names were removed from it, all current or former people at Clutz: Julie Levis, Marcus Day, Michael Mitchell and Philippa Hofbrucker. 

Further, Hodgkinson sought a super-injunction, i.e. an order that there be no publication of the fact that the no-publication order was sought. 

Fortunately, it was not pressed. 

*   *   *

Whittaker: right-to-know advocateWhile judges can reach into the grab bag of reasons to overturn the open justice principle there are fewer more disturbing sights than the media itself applying for no publication or suppression orders. 

This is going on at the moment in the preliminary stages of the prosecution of AFP officer Simon Artz, who is alleged to have leaked highly sensitive information to a reporter on The Australian, Cameron Stewart. 

The Australian is seeking to suppress the publication of a conversation between the former editor of the paper, Paul Whittaker, and federal police commissioner Tony Negus.  

This was the conversation that resulted in an arrangement whereby The Australian published details of a secret police raid on a bunch of alleged terrorists. 

It is understood the paper would run the story, but only after the raid had taken place in the early hours of the morning. 

Unfortunately, there was a slip-up and The Australian was accused by the former Victorian police commissioner, Simon Overland, of welching on the deal and publishing the story before the police moved in on their targets. 

The publisher of The Australian, News Ltd, has repeatedly sought to suppress information surrounding the publication of this story and its arrangements with the police. 

The Australian and Whittaker have been champions of the media's Right To Know campaign, which lobbied against what it claimed was an overabundance of suppression and no-publication orders. 

The AFP is now saying that to publish details of the conversation between Whittaker and Negus might be a danger to national security and undermine "mutual trust and cooperation" between the police and the media. 

The Australian supports these over-egged submissions in the Victorian magistrates' court.