Australia: Open Courts Act 2013 (Vic) and suppression orders

In brief - Applicants must satisfy obligations but ultimate decision to grant order rests with court or tribunal

A successful suppression order application requires an applicant to think carefully about the grounds for suppression orders, procedural steps, evidence and drafting, ensuring that the Open Courts Act 2013 (Vic) obligations are satisfied. Applicants should also be mindful of the difference between pseudonym and suppression orders and consider which is more suitable for the desired purpose.

Open Courts Act limits the circumstances under which suppression orders can be made

Commencing 1 December 2013, the Open Courts Act was introduced in part to consolidate the statutory powers of all Victorian courts and tribunals to make suppression orders and in part to promote, strengthen and reinforce the concept of "open justice". It creates a general presumption in favour of disclosure of information and provides that suppression orders can only be made in specified limited circumstances.

Without referring to any matter in particular (as many remain the subject of a suppression order), this article draws from our legal practice's general experience and knowledge, and focuses on applications for suppression orders within the Victorian courts and tribunals in particular. Before making, or objecting to, Victorian- based applications for suppression orders, the parties must carefully consider the operation of the Act and ensure that its procedural, evidentiary and drafting obligations have all been satisfied

What is a suppression order?

Under section 3 of the Act, a "suppression order" is defined to cover:

A proceeding suppression order is an order that prohibits or restricts disclosure by publication or otherwise of a report of the whole or any part of a proceeding or any information derived from a proceeding (section 17). The court or tribunal may make a proceeding suppression order provided that it is satisfied that one of the five statutory grounds (set out in section 18) is made out, including:

  • The order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice and cannot be prevented by other reasonably available means (section 18(1)(a))
  • 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 (section 18(1)(b))
  • The order is necessary to protect the safety of any person (section 18(1)(c))
  • The order is necessary to avoid causing undue distress or embarrassment to a complainant or witness in any criminal proceeding involving a sexual offence or a family violence offence (section 18(1)(d))
  • The order is necessary to avoid causing undue distress or embarrassment to a child who is a witness in any criminal proceeding (section 18(1)(e))

If an application is made for a proceeding suppression order, the court or tribunal may make an interim suppression order without determining the merits of an application under section 18 of the Act (see section 20).

A broad suppression order is not defined in the Act but it is noted that such an order must not be made in respect of any information which could be the subject of a proceeding suppression order (see section 24). This type of suppression order is very broad and relates to matters which are not derived from the proceeding (e.g. a television broadcast about a similar issue in close proximity to the trial of an accused in the proceeding).

Applicants and court or tribunal must satisfy certain notice obligations when making a proceeding suppression order

Prior to the court or tribunal making a proceeding suppression order, there are a number of steps which must be satisfied. In particular:

  • Notice to the court or tribunal and other parties ( section 10), and
  • Notice to relevant news media organisations ( section 11)

The Act imposes a procedural obligation on applicants to give three business days' notice to the court or tribunal in which the application is to be made and the parties on record in the proceeding to which the application relates (see section 10).

The Act also imposes an obligation on the court or tribunal in which the application is to be made to take reasonable steps to ensure that any relevant news media organisation is notified of the application (see section 11). Typically, this notification is in the form of an electronic communication to news mediation organisations which the court would ordinarily contact prior to making such an order. In our experience, once notified, the news media organisations will more likely than not attend the hearing of the application either as a passive observer or as an interested party with submissions to advance.

Evidence to support making the suppression order should be direct and specific

The Act provides under section 14 that the court or tribunal must be satisfied on the basis of sufficient credible information that the grounds for making the order are established.

The Victorian courts and tribunals have a preference for direct and specific evidence. By way of example only, by reference to the ground that the suppression order is necessary to protect the safety of any persons (section 18(1)(a)), the applicant should put on evidence from the at risk person about the likely impact of disclosure upon their safety and their circumstances. The applicant should also put on similar evidence from an appropriate expert (usually a medical practitioner).

It is not normally adequate for the solicitor to put on indirect evidence about the likely impact upon the at risk person, noting, however, that this evidence may be sufficient for an interim suppression order as it is not necessary for the court or tribunal to determine the merits of the application at that time (see section 14(2)).

Drafting obligations include specifying duration, suppressed information and purpose

Assuming that the procedural and evidentiary obligations are satisfied, it is worth noting that the Act also imposes the following obligations in relation to the drafting of the suppression orders:

  • The duration of the order must be specified ( section 12). The order must either operate for a specified period, operate until a future event which will occur or operate until a future event which may occur in which case it must also operate for a period not exceeding five years after which the order expires (which ensures the orders do not operate indefinitely in a situation where the future event does not occur). The order must also ensure that it operates no longer than is reasonably necessary to achieve the purpose for which it was made (see section 12(4)).
  • The order must specify supressed information with "sufficient particularity" ( section 13). The order must be limited to achieving the purpose for which the order was made. The order must also specify the purpose of the order (see section 13(2)(a)).

Pseudonym orders restrict applicant's true identity to parties to proceeding

The difference between pseudonym and suppression orders is a cause of common confusion.

As recently as last year, in the case of Hunter v AFL & Anor [2015] VSC 112, the solicitors for the applicant (Hal Hunter) provided the Victorian Supreme Court with notice of an application for suppression order pursuant to section 10 of the Act when in fact on hearing the application it became clear that what was being sought was a pseudonym order - that is, an order which restricted the applicant's true identity to the parties to the proceeding.

Another example of confusion which we have seen involves parties agreeing an order by consent orders as follows: "The Plaintiff's name be supressed and referred to as X1". In this particular example, there is likely to be confusion between the parties about whether the proposed order is a suppression order or a pseudonym order. The use of the word "suppressed" is apt to mislead. Assuming an order of this nature was in fact made by a Victorian court or tribunal, then, if challenged, it would more than likely be characterised as a pseudonym order only because it failed to satisfy the Act's procedural, evidentiary and drafting obligations.

It is incumbent upon the parties to a proceeding to consider the most appropriate order to achieve the desired purpose. If an applicant only wants to limit the extent of non-disclosure to the identity of a party to the proceeding or a single person within a proceeding, then the applicant ought to make an application for a pseudonym order rather than a suppression order.

The distinction between a suppression order and pseudonym order was highlighted in ABC-1 and ABC-2 v Ring and Ring [2014] VSC 5 at [15], where Justice Bell noted as follows:

An order permitting a proposed civil proceeding to be issued in the name of plaintiffs identified by pseudonyms and requiring them to be identified in court documents only by those pseudonyms is not a "suppression order" as defined in s 3 [of the Act]. It does not come within any of the components of that definition. Such an order does not prohibit or restrict the publication or other disclosure of information in connection with a proceeding. It is a pre-commencement order that parties are to be named by way of pseudonym in court documents yet to be produced and filed. As a pseudonym order is not a suppression order under the Open Courts Act, it is not necessary for an applicant for such an order to comply with the notice provisions of that Act.

Factors to be aware of when considering a suppression order

When considering an application for suppression orders it is important to keep the following in mind:

  • The ultimate decision as to whether a suppression order will be granted is one for the relevant court or tribunal. It is not enough for the parties to a proceeding to consent to suppression orders. The applicant must satisfy the procedural (notice) requirements, draft the suppression order in a manner which satisfies the obligations under the Act and produce sufficient credible evidence that the grounds for making a suppression order are satisfied.
  • Be aware that there is a presumption in favour of open justice and free communication of information (see section 4) and media organisations will be notified about any application for suppression orders, so they too can make submissions to the court or tribunal.
  • Be careful to avoid confusion between pseudonym and suppression orders. In Victoria, the requirements for these two types of orders are different. Parties to a proceeding should consider which type of order is the appropriate mechanism to achieve the desired purpose.
  • The evidence relied upon to support an application for suppression orders is particularly important. Where it is asserted that an individual is likely to be affected by the disclosure of information, in our experience, the Victorian courts and tribunals prefer direct and specific evidence from the individual in question. Expert evidence about the implications of disclosure is also likely to be persuasive.

Adam Stevens
Commercial litigation
Colin Biggers & Paisley

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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