New South Wales Commissioner of Police v Nationwide News Pty Ltd & Anor

(2007) 70 NSWLR 643; [2007] NSWCA 366

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Non-publication orders
3. › Inherent jurisdiction of Supreme Court
4. › Public interest immunity
5. › Balancing public interest in non-disclosure against open justice principle
6. › Where information previously disclosed in open court
7. › Whether real risk if non-publication refused
1. Practice and Procedure
2. › Non-publication orders
3. › Scope of court's power
4. › Whether power extends to suppression of information already in public domain through open court proceedings
5. › Whether exceptions to open justice principle are confined to a closed list
1. Appeal
2. › Standard of appellate review
3. › Non-publication orders
4. › Whether orders involve exercise of discretion attracting House v The King principles
5. › Whether appellate court may independently evaluate consequences of disclosure

Quick Take

Courts have inherent power to make non-publication orders suppressing information already disclosed in open court where public interest immunity considerations require it, and there is no closed list of situations in which such orders may be made. An established basis of public interest immunity will prevail over the open justice principle, but no more than is really necessary to protect the subject matter of the immunity. The court must distinguish between mere surmise or speculation as to possible risks and soundly based opinion as to such risks when assessing whether non-publication is warranted.