Background
Fred Caterson Champions Inc brought judicial review proceedings challenging The Hills Shire Council’s environmental assessment of a proposed sports complex at Fred Caterson Reserve. Among other matters, the applicant alleged that the Council had not adequately considered the development’s effects on vulnerable owl species, including the effects of increased lighting and cumulative development impacts.
During the part-heard proceedings, both parties jointly sought to prevent public access to evidence identifying or tending to identify the locations of Powerful Owl nesting and breeding trees in the reserve. Evidence from BirdLife Australia personnel and others described how disclosure of nesting locations could encourage over-visitation, photography, bright lighting and other disturbance, creating risks to the owls, their habitat and public safety.
The Court’s Holding
Pepper J held that suppression and non-publication orders were justified under ss 7(b), 8(1)(a) and 8(1)(e) of the Court Suppression and Non-publication Orders Act 2010 (NSW). Although such orders are exceptional and the statutory test of necessity must be strictly applied in light of the principle of open justice, the evidence established a real risk of harm if precise nesting information entered the public domain.
The Court prohibited access to, disclosure of and publication of evidence identifying or tending to identify the relevant nesting and breeding trees. It also prohibited publication, except to the parties and their legal advisers, of specified evidence in a solicitor’s affidavit. The orders apply throughout Australia for five years, after which either party may seek a further order. No order was made as to costs.
Key Takeaways
- An agreed or unopposed suppression application still requires the court independently to examine the evidence and apply the strict statutory test of necessity.
- Species-location evidence may be suppressed where public disclosure creates a real risk of disturbance, habitat damage, breeding failure or danger to the public and wildlife.
- The Court found that allowing the litigation itself to expose the threatened species to harm would undermine the conservation purpose of the judicial review proceedings and prejudice the proper administration of justice.
Why It Matters
The ruling illustrates how Australian courts may reconcile open justice with the protection of ecologically sensitive information. The public interest in access to court evidence does not invariably extend to precise geographic data when disclosure could materially endanger threatened wildlife.
It also emphasizes that suppression orders must be supported by persuasive evidence, confined to what is necessary and limited in duration and geographic operation. Here, the Court concluded that no less restrictive practical mechanism could protect sensitive location information already contained in the evidence.