Case: Scott v Scott [1913] AC 417
Outcome: applied
since at least the seminal case of Scott v Scott [1913] AC 417, the concept that material deployed in open court might be embarrassing to a party or witness has not been sufficient to warrant closing the court or restricting in any way the scrutiny which publicity brings to bear upon judicial proceedings. In that case it was sought to enforce, by a process of contempt, an order made to keep issues in a divorce suit secret. The suit had been heard in camera and their Lordships unanimously held there was no power in the court to do so. As Viscount Haldane LC said ([1913] AC at 437): 'While the broad principle is that the courts of this country must, as between parties, administer justice in public, this principle is subject to apparent exceptions such as those to which I have referred.' (Namely, the cases of children and those with mental impairment.) His Lordship continued: 'But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done.' He then said that there may well be cases in which justice could not be done at all if it had to be done in public and continued: 'As the paramount object must always be to do justice, the general rule is to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be suspended by this paramount consideration. The question is by no means one which, consistently with the spirit of our jurisprudence, can be dealt with by the judge as resting in his mere discretion as to what is expedient. The latter must treat it as one of principle, and as turning, not on convenience, but on necessity. ... But unless it be strictly necessary for the attainment of justice, there can be no power in the Court to hear in camera either a matrimonial clause or any other where there is contest between the parties. He who maintains that by no other means than by such a hearing can justice be done may apply for an unusual procedure. But he must make out his case strictly, and bring it up to the standard which the underlying principle requires. ... The mere consideration that the evidence is of an unsavoury character is not enough, any more than it would be in a criminal Court, and still less is it enough that the parties agree in being reluctant to have their case tried with open doors.' ([1913] AC at 438) One of the reasons why the principle of open justice is so fundamental in securing the due exercise of judicial power was explained by Earl Loreburn in his concurring speech. He said ([1913] AC at 449): 'But when a Court has to decide either that there should be no justice available for people suffering under wrong or that malicious publication should be prevented, I believe the second is the right alternative, and that so to hold is merely to apply a principle acted upon by higher authorities and indispensable in itself. There does, indeed, remain a danger that a Court may not be so jealous to do right when its proceedings are not subject to full public criticism. I acknowledge that this is always possible, and it is not an adequate answer to say that the judges can be trusted, though I believe entirely that they can be trusted. It comes to a choice between the administration of justice in some cases without the safeguard, on the one hand, and on the other hand no administration of justice in such cases at all.' In Dickason v Dickason [1913] HCA 77 ; (1913) 17 CLR 50 at 51 Barton ACJ giving the judgment of the High Court said that: '... the judgment of the House of Lords in Scott v Scott ([1913] AC 417), the effect of which is that there is no inherent power in a Court of justice to exclude the public, inasmuch as one of the normal attributes of a Court is publicity, that is, the admission of the public to attend the proceedings. Power to exclude may be conferred expressly by law, but there is no law which empowers us to proceed otherwise than with the ordinary publicity of a Court of justice.' Subsequently other Full Courts have continued to apply these principles; see Herald and Weekly Times Ltd v Williams [2003] FCAFC 217 ; (2003) 130 FCR 435 at 443 where Merkel J, with whom Finn and Stone JJ agreed, applied what Gibbs J had said in Russell v Russell [1976] HCA 23 ; (1976) 134 CLR 495 at 520, namely: 'It is the ordinary rule of the Supreme Court as of other courts of the nation, that their proceedings should be conducted "publicly and in open view" ( Scott v Scott [1913] AC 417 at 441). This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials for "publicity is the authentic hallmark of judicial as distinct from administrative procedure" ( McPherson v McPherson [1936] AC 1777 at 200). Merkel J went on to recognise at 130 FCR 444-445 [36]: 'A different situation might arise, for example, if the embarrassment or damage that publicity might occasion is such that it would prevent or deter a person from prosecuting or defending a proceeding in the court or "if there was a real risk as opposed to a remote possibility that this would occur": see Johnston v Cameron [2002] FCAFC 251 ; (2002) 124 FCR 160 at 180. If that situation arises it can be waived in the discretionary balance that is to be struck between the public interest of open justice and preventing prejudice to the administration of justice.'