The suppression order was lifted only after The Sydney Morning Herald challenged it in court.
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“The lesson for present purposes is that but for a media organisation spending its own money to intervene and oppose further suppression and non-publication orders, it appears that the judge would not have received the benefit of a contradictor,” Lee said.
More recently, on August 30, NSW Liberal MP Rory Amon signalled his intention to apply for a suppression order, and only withdrew the application after media outlets prepared to mount a challenge in Manly Local Court.
“It seems to me stamping out vestiges of a culture of secrecy and promoting principles of open justice are indispensable for the optimal operation of our criminal and civil justice system,” Lee said
He offered six ways that court secrecy could be improved.
Firstly, by collecting data on the number of suppression orders currently in force.
Secondly, by attempting to “Marie Kondo-fy the piecemeal, inconsistent and, in some respects, baffling system of various state and territory laws by which suppression orders are made”, Lee said. The inconsistencies were increasing, including most obviously in the way different states sought to protect victims of domestic violence and sexual offences, he said.
Thirdly, by making uniform court provisions for access to court documents; fourthly, by creating a national register of suppression and non-publication orders to aid compliance where orders have been properly made; and fifthly, by recognising the role of the media, which was often the only practical check on inappropriate suppression.
“At a time when traditional media is suffering revenue decline and costs pressure, it cannot simply be left to the fourth estate to protect a grundnorm [foundational principle] of our justice system on a haphazard basis,” the judge said.
Lee’s sixth suggestion was that the presiding judicial officer should be required to state the reasons for granting an order and its duration, and that should be publicly available on the national register.
His speech came two weeks after he presided over an application for a suppression order by shopping giant Super Retail Group over the statement of claim lodged by two former employees in an unfair dismissal case, which included allegations of an intimate relationship between its chief executive officer and chief human relations officer. The employees also applied for a suppression order.
He dismissed the applications for suppression orders but made limited non-publication orders.
“Parties and witnesses must accept the embarrassment, damage to reputation and the possible consequential loss which can be inherent in litigation,” he ruled. “Adverse publicity, even to third parties, is an often inevitable by-product of litigation and is part of the price paid for open justice.”
The matter is under appeal.
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