NOTIFICATION PROCEDURES

6.1 In our view the procedures, if any, to be adopted by courts, Royal Commissions and Special Commissions of Inquiry to identify those persons who intend to use sound recorders prior to the commencement of proceedings should be a matter for each court and Commission. We observed in Chapters 2 and 3 that all courts and Commissions have power to regulate their own proceedings. This power extends to establishing notification procedures. In the case of courts, it may be thought desirable to proceed by way of rules of court or practice directions. While most courts in New South Wales are granted statutory power to make rules of court,¹ all courts have inherent power to make rules of court and practice directions.²

6.2 Notification procedures could take a variety of forms.

• At the commencement of proceedings, the judge, magistrate or Commissioner could ascertain those persons who intend to use a sound recorder and verify their bona fides. This may be an appropriate procedure in country courts and courts where, for example, there is only one representative of the news media present who intends to use a sound recorder. However, it might be a cumbersome procedure to follow in proceedings that have attracted a high degree of media interest.
• A register for each court could be established (for example, separate registers for the Supreme Court, Land and Environment Court, District Court). All persons who intend to use a sound recorder, apart from parties and their legal representatives, could be required to enter certain details in the register, including the purpose for which the recording is being made. Inquiries could be handled by an officer of the court who would have the task of determining the bona fides of those persons making an entry into the register. A register could also be kept by each Royal Commission and Special Commission of Inquiry for the duration of the proceedings.
• Although we do not suggest that members of the public, as suck should have a statutory right to use a sound recorder to record the proceedings of courts and Commissions, the existing law allows members of the public to use a sound recorder with the leave of the court or Commission.³ If members of the public wish to apply for permission it may be thought desirable for them to enter details of their request in a register. These details could be placed before the presiding judge or Commissioner who would then decide whether the use of a sound recorder should be permitted.

6.3 We consider that each court and Commission should decide whether notification procedures are necessary and, if so, the most efficient way to establish and conduct such procedures. There will be no difficulty in the vast majority of cases since it will only be the parties and their legal advisers, together perhaps with a single representative of the news media, who wish to avail themselves of their statutory entitlement. It will only be in exceptional cases that a significant number of persons will wish to use sound recorders. In these circumstances appropriate notification procedures could be provided in the form of rules of court or practice directions.

REMEDIES

Introduction

6.4 In this report we have recommended that certain persons be permitted to use sound recorders as of right to record the proceedings of courts, Royal Commissions and Special Commissions of Inquiry. We stated that the exercise of this right should be subject to the power of the court or Commission to prohibit or order the cessation of the use of a sound recorder where it is reasonably believed that the use of a sound recorder constitutes a substantial interference with the administration of justice or the functions of the court or Commission. or that such interference would occur if recording were permitted. We also recommend that the right to use sound recorders should be created and regulated by statute.

6.5 In this section we examine the remedies that are available to a person who claims that a court or Commission has refused or failed to give effect to the statutory right to use a sound recorder envisaged by our recommendations. The position is more complex than appears at first glance, since the remedies usually open to a person aggrieved by an order or decision of a court may not be available where the ruling relates to the use of a sound recorder. For example, one particular difficulty created by our recommendations is that the person seeking to use a sound recorder may not be a party to the proceedings and thus may not be able to take advantage of rights of appeal ordinarily open to parties. Accordingly, we first describe briefly the various ways in which the validity of a refusal by a court or Commission to permit the use of sound recorders might be tested and then assess whether new remedies are required.

Review of a Refusal to Permit the Use of a Sound Recorder

Appeals

6.6 We suggest in paragraphs 6.8 and 6.9 that the refusal of a court or Commission to permit the use of a sound recorder could be reviewed in certain circumstances. However, a more important question is whether a person aggrieved by such a refusal may appeal directly to a superior court.

6.7 There is no clear cut answer to this question because the legislation governing appeals from the various courts in New South Wales is not drafted in uniform terms and difficult questions of interpretation arise. Moreover, it is fair to say that, in general subject to paragraphs 6.8 and 6.9, there seems to be no right of appeal from a refusal by a court or Commission to permit the use of a sound recorder, even where this is alleged to contravene a right conferred by statute. For example:

• Section 101 (I) (a) of the Supreme Court Act 1970, provides for an appeal from a “judgment or order’ of the court Similarly, section 112(l) of the justices Act 1902, provides for appeals by any person aggrieved by any “order” of a Justice. While the issue is not free from doubt it is likely that a refusal to permit a sound recorder to be used in the proceedings is not an “order” within the meaning of these Acts, since it does not determine an issue between the parties.⁴
• Other legislation provides for appeals only by parties to the proceedings and would appear to preclude an appeal by an aggrieved person such as a journalist who is not a party to the proceedings.⁵
• Neither the Royal Commissions Act 1923 nor the Special Commissions of Inquiry Act, 1983 provide for appeals to a court of review against rulings made by the Commissioner.

Denial of a Fair Trial

6.8 Our recommendations envisage that the parties to legal proceedings and their legal representatives should be permitted to use sound recorders, subject to certain restrictions. It is possible that an unjustified refusal by a court to permit a party, or his or her counsel to use a sound recorder could warrant an appeal on the ground that the refusal effectively denied the aggrieved person a fair trial.⁶ If, for example, the defendant in criminal proceedings could demonstrate significant prejudice in the preparation and presentation of the defence because of the inability to use a sound recorder, a conviction arising out of those proceedings might be quashed on appeal. This is not to suggest that an unjustified refusal to permit the defendant s counsel to use a sound recorder would necessarily constitute grounds for quashing a conviction. However, the possibility of that result would provide a means of challenging the validity or propriety of the trial courts refusal to permit the use of a sound recorder.

Contempt of Court

6.9 The validity of a refusal by a court or Commission to permit the use of sound recorders could also be tested in the context of contempt proceedings. All courts of record in New South Wales have inherent power to punish for contempt in the face of the court.⁷ Royal Commissions and Special Commissions of Inquiry have statutory power to punish for contempt.⁸ The issue could arise if a court or Commission gives a direction that sound recorders are not to be used and a person not necessarily a party to the proceedings, defies that direction. In these circumstances the court or Commission may seek to impose a penalty on the offending person for contempt If a penalty is imposed and a right of appeal or review is available, the offender (the contemnor) may apply to have the finding of contempt reviewed by a higher court Any such proceedings, whether formally byway of appeal or for prerogative relief (for example, for a writ of certiorari), would raise for consideration the validity of the original refusal to permit the use of a sound recorder.⁹

Prerogative Writs

6.10 It may be possible for a person who has been denied a statutory right to use a sound recorder to obtain judicial review of the order by means of the prerogative writs, for example, certiorari or prohibition.¹⁰ In brief, certiorari consists of

• an order that the official record of a court or authority be removed into the court of review; and
• an order by the review court that the decision involved in the record be quashed.¹¹

Prohibition either prevents an order being made or prohibits the continuation of a course of action based on an order already made.¹²

6.11 It has been said that certiorari and prohibition lie against “any body of persons having legal authority to determine questions affecting the rights of subjects.”¹³ In our view, a person who is denied a statutory right to use a sound recorder by a court is clearly able to satisfy this requirement. Prerogative relief is available against Royal Commissions and can be obtained in the Court of Appeal.¹⁴ However, a significant limitation is that the Supreme Court is immune from orders in the nature of certiorari and prohibition.¹⁵ Other superior courts in New South Wales, namely, the Industrial Commission and the Land and Environment Court may also be immune, although the position is open to some doubt.¹⁶

Declarations

6.12 A person who has been refused permission to use a sound recorder may challenge the decision by seeking a declaration that the refusal violated a statutory entitlement and was thus invalid or improper. Declaratory relief may be awarded by the Supreme Court pursuant to section 75 of the Supreme Court Act, 1970, which states, inter alia, that

“the Court may make binding declarations of right whether any consequential relief is or could be claimed or not.”

There is little doubt that a person who has been refused permission to use a sound recorder would have standing to claim a declaration,¹⁷ whether or not he or she was a party to the original proceedings. There is also little doubt that the Supreme Court has jurisdiction to issue declarations against other courts and Commissions. Proceedings for declarations concerning the powers of certain courts are assigned to the Court of Appeal.¹⁸

6.13 The declaration is a discretionary remedy so that even where the court has jurisdiction it is not bound to grant relief. Nonetheless, declaratory relief has a number of advantages compared with other remedies, and is regarded as a flexible and expanding remedy. According to Meagher, Gummow and Lehane,¹⁹ declarations afford a comparatively speedy remedy, are generally less expensive than other remedies, tend to avoid or minimise protracted litigation and can be made in circumstances where no other relief would be available. Moreover, declaratory relief has the advantage of simplicity. The Chief justice of New South Wales has stated that:

“The declaratory jurisdiction of this Court is not hedged about with the restrictions, nor clouded by the complications, that attach to the remedy by way of prohibitions.”²⁰

6.14 Declarations are considered to provide a broad and flexible remedy. in the words of the President of the New South Wales Court of Appeal:

“Because of the nature of a declaration and its availability for use in isolation the power provides a useful judicial tool, apt to mould procedures to meet the changing needs of society.”²¹

The cases make it clear that the circumstances in which declarations can be awarded are not closed.²² As one judge has observed, the power of a court to make a declaration is “only limited by its own discretion.”²³

6.15 While the declaration is a discretionary remedy, generally speaking there are several prerequisites which must be satisfied before the remedy is available.

“The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought.”²⁴

6.16 Another principle of special relevance in the present context is that the court may exercise its discretion to refuse relief if the declaration will lack utility and be of little practical value.²⁵ For example, a judge may order that a sound recorder not be used to record proceedings and the person concerned may immediately institute separate proceedings to obtain a declaration. However, it can be envisaged that in some instances the proceedings which were to have been recorded would have concluded by the time the application for a declaration is heard. It could be argued, therefore, that a declaration should be refused because it would lack utility in the circumstances. Yet relief will be granted if the declaration “ is of some value ... or benefit to the plaintiff”,²⁶ or if it “will serve some useful purpose”.²⁷ If the court accepts the need to clarify the scope of the right to use sound recorders and believes that the making of a declaration would serve a useful purpose in this respect then relief may be available, despite the fact that the proceedings which were to have been recorded by the aggrieved person, have concluded.²⁸

6.17 A further, and perhaps more difficult, question arises in relation to declarations. The question is whether the Supreme Court of New South Wales would make a declaration that amounts to a review of an order of a superior court The same question arises in relation to applications for orders in the nature of certiorari and prohibition in the hypothetical case of a Supreme Court Judge, after the introduction of the statutory right envisaged in this report, making an order forbidding a person to use a sound recorder, would the Supreme Court entertain proceedings that sought a declaration on the correctness of that order? Some doubt arises because there is judicial authority in New South Wales suggesting that declarations should not be made which would have the effect of contradicting a decision of a Superior Court unless an order can also be made which quashes the decision or in some way operates so that the decision ceases to have effect.²⁹ The judicial comments to this effect were obiter dicta and related to proceedings in which the impugned orders affected rights that were the subject of those proceedings.³⁰ However, they merit consideration because there is a substantial discretionary element in the granting of relief by way of declaration.

6.18 As far as declarations are concerned we are of the view that sufficient power is conferred upon the Supreme Court by the Supreme Court Act, 1970, to enable the court to make a declaration that would effectively review the hypothetical order referred to above.³¹ It may be that the status of superior courts and the discretionary nature of the remedy would suggest that such a declaration should only be made by the Court of Appeal. Whatever may be the most desirable procedures, our view is that their development is best left to the Supreme Court itself and is noL at this stage, a matter for this Commission.

6.19 We note that no declaration (or other remedy) lies against a Special Commission of Inquiry.³² There is no section in the Royal Commissions Act, 1923 which prevents declarations being issued against Royal Commissions.

Summary

6.20 This analysis suggests that the position of a person wishing to challenge the refusal of a court or Commission to permit the use of a sound recorder, where the refusal may be said to contravene that persons rights as recommended in this report, is broadly as follows:

• It is unlikely that there would be a right of appeal as suck against an order of a court or Commission not to use a sound recorder.
• In limited circumstances the order, if it affects a party to the proceedings, may give rise to an appeal on the ground that that party was denied a fair trial.
• If a person is punished for contempt because he or she has breached a direction not to use a sound recorder, it would be open to that person on appeal or review to challenge the validity of the original direction.
• Certiorari or prohibition may be appropriate remedies in some circumstances where, for example, it is sought to have the order of an inferior court or a Royal Commission prohibiting the use of a sound recorder quashed. Prerogative relief will not be available in respect of Special Commissions of Inquiry, the Supreme Court and perhaps other superior courts of record in New South Wales.
• The Supreme Court Act, 1970 gives power to the Supreme Court to make a declaration in respect of the refusal of a court or Royal Commission (but not a Special Commission of Inquiry) to allow the use of a sound recorder.

Conclusion

6.21 We have considered whether we should recommend legislation providing specific remedies for a person aggrieved by the apparent refusal of a court or Commission to give effect to the statutory right we have suggested should be created. Such legislation might, for example, establish a right of appeal in respect of an order or direction that a sound recorder not be used, or state clearly that declaratory relief should be granted in an appropriate case. There is much to be said for legislation of this kind. The principal argument is that the statutory right to use a sound recorder may prove illusory in the absence of an effective means of challenging a direction not to use such a recorder. If there is no ready avenue of appeal or review, there might be a tendency to give an unduly broad interpretation to the grounds on which on our recommendations, the use of sound recorders may be prohibited.

6.22 Nevertheless, we are reluctant to recommend the creation of special remedies for this class of case. We think it should be assumed that courts and Commissions will act in accordance with the spirit of any legislation implementing our recommendations and will not place a restrictive interpretation on its provisions. We also consider that existing remedies and powers, although by no means perfect are sufficient to allow the courts to provide guidance and to intervene in appropriate cases.³³ Moreover, the existing law provides an opportunity to individuals and organisations who wish to test particular rulings to do so.

6.23 For these reasons we do not think it necessary to recommend special procedures to give effect to the statutory right to use sound recorders. We prefer to leave it to the courts to apply any legislation and to formulate the necessary rules and practice directions. We are confident that the courts would adapt existing remedies to ensure that the intention of a statute is not frustrated Should it become clear that the legislation is not proving effective, it would be feasible for the Attorney General to reassess the circumstances with a view to the creation of specific remedies.

FOOTNOTES

1. See, for example, Supreme Court Act, 1970, s.124; Land and Environment Court Act 1979, s.74; District Court Act 1973, s.161; Workers’ Compensation Act, 1926, s.38(e).

2. See Connelly v. Director of Public Prosecutions [1964] A.C. 1254, per Lord Devlin at p.1347. See also I.H. Jacob, “The Inherent Jurisdiction of the Court” (1970) 23 Current Legal Problems 23, at pp.33-37. Clause 21 of the draft legislation attached to this report provides that where a court has power to make rules regulating the practice or procedure of the court, the court may make rules regulating its practice and procedure in respect of the making and use of sound recordings.

3. In our forth coming Issues Paper we discuss the question whether members of the public should have a right to record the proceedings of courts and Commissions and not have to seek leave to use a sound recorder.

4. Halsbury’s Laws of England (4th ed., 1979), vol 26, para.501.

5. See, for example, Workers’ Compensation Act, 1926, s.37(4); Land and Environment Court Act, 1979, Part V.

6. See generally, J, Bishop, Criminal Procedure (1983), Chapter 8.

7. See para.2.37, f.n.78.

8. Royal Commissions Act 1923, s.18(l) (d); Special Commissions of Inquiry Act, 1983, s.24(d).

9. Unlike the United Kingdom Administration of Justice Act 1960, s.13(1), there is no specific statutory right of appeal in New South Wales from an order of a court punishing for contempt. Usually, however, an appeal would lie under general appeal provisions. See, for example, Supreme Court Act, 1970, s.101; Skouvakis v. Skouvakis [1976] 2 NSWLR 29. An order for certiorari may be obtained in the Court of Appeal. For example, to quash an order for contempt made by a Royal Commission: Thelander v. Woodward [1981] 1 NSWLR 644. The position would seem to be otherwise in the case of Special Commissions of Inquiry. Special Commissions of Inquiry Act, 1983, s.36(2).

10. Section 69 of the Supreme Court Act, 1970 provides that the Supreme Court shall not issue prerogative writs, but the court continues to have jurisdiction to make appropriate orders.

11. E.I. Sykes, D.J. Lanham, and R.R.S. Tracey, General Principles of Administrative Law (1979), para.2009.

12. Ibid,

13. R. v. Electricity Commission; ex parte London Electricity Joint Committee Co. [1924] 1 KB. 171, per Atkin LJ., at p.205.

14. Thelander v. Woodward [1981] 1 NSWLR 644. Prerogative relief is not available against Special Commissions of Inquiry: Special Commissions of Inquiry Act, 1983, s.36(2).

15. H. Whitmore and M. Aronson, Review of Administrative Action (1978), p.421. In Ferraro v. Woodward (1978) 19 ALR 188, Gibbs A.C.J stated that prohibition would not tie against a Judge sitting as a member of the Supreme Court of New South Wales but would lie against the same judge sitting as a Royal Commissioner (p.189).

16. it has been said that:

“the inquiry into the status of the court in such matters [certiorari and prohibition] is one based on objective criteria and not necessarily on a legislative statement as to the status of the court” (Note 11 above, para.2010)

17. H. Whitmore and M. Aronson, note 15 above, p.479.

18. Supreme Court Act, 1970, s.48(l)(a), (2)(e) (covering the Land and Environment Court, the Industrial Commission, the District Court and the Workers’ Compensation Commission). Proceedings for a declaration against a magistrate may be commenced in the Common Law Division of the Supreme Court: Supreme court Act. 1970, s.53(3C), (4). The Court of Appeal would also have jurisdiction to grant declarations against Royal Commissions. Declarations do not lie against Special Commissions of Inquiry. Special Commissions of Inquiry Act, 1983, s.36(2).

19. R.P. Meagher, NV.M.C. Gummow and J.PF. Lehane, Equity Doctrines and Remedies (1975), paras.1926-1927.

20. Connor v. Sankey [1976] 2 NSWLR 570, per Street C.J., at p.592. See also Sankey v. Whitlam (1978) 142 CLR 1, per Gibbs A.C.J., at p.25.

21. Johnco Nominees Pty. Ltd. v. Albury-Wodonga (New South Wales) Corporation [1977] 1 NSWLR 43, per Moffitt P., at p.55.

22. J.M. Evans, De Smith’s Judicial Review of Administrative Action (4th ed., 1980), pp.482-483.

23. Hanson v. Radcliffe Urban District Council [1922] 2 Ch. 490, per Lord Sterndale M.P,, at p.507.

24. Russian Commercial and Industrial Bank v. British Bank for Foreign Trade [1921] 2 A.C. 438, per Lord Dunedin, at p.448.

25. P.W. Young, Declaratory Orders (1975), para.812. See also Coles v. Wood [1981] 1 NSWLR 723.

26. Id., para.813.

27. J.M. Evans, note 22 above, p.513.

28. Merricks v. Nott-Bower [1965] 1 Q.B. 57; Marion White Ltd. v. Francis [1972] 3 All E.P, 857.

29. News Ltd. v. Printing and Kindred Industries Union (New South Wales Branch) [1975] 1 NSWLR 151, per Hutley J.A., at p.154; In the Estate of Leahy (Dec’d); Earl v. Moses [1975] 1 NSWLR 246, per Bowen C.J. in Eq, at p.252.

30. There is also English authority to the contrary. Ellerman Lines Ltd. v. Read (1927) 44 TLR 7; Burr v Anglo-French Banking Corp. Ltd. (1933) 49 TLR 405.

31. See ss.23, 75 and 48(1), (2).

32. Special Commissions of Inquiry Act, 1983, s.36(2).

33. We are aware that no remedies would be- available against Special Commissions of Inquiry. But this is because of the statutory exclusion of all remedies against such a body Special Commissions of Inquiry Act, 1983, s.36(2).