State of New South Wales v Elomar (No 3)

Supreme Court

New South Wales

Medium Neutral Citation: State of New South Wales v Elomar (No 3) [2018] NSWSC 1158
Hearing dates: 06 July 2018
Date of orders: 06 July 2018
Decision date: 27 July 2018
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1) The Judgment (No 2), in its present form in this matter, is to be removed from Caselaw and, as and when a redacted version is provided, the redacted version will be published to Caselaw until further order of the Court.
(2) The parties are to provide a redacted version of Judgment (No 2) in this matter to be published on Caselaw.
Catchwords: SUPPRESSION ORDER – principle of open justice – reference in judgment to matters obtained from confidential exhibit – matters of national or international terrorism intelligence – original judgment redacted on application of Attorney General -
Legislation Cited: Court Suppression and Non‑publication Orders Act 2010, s 8(1)(b)
Cases Cited: State of New South Wales v Elomar (No 2) [2018] NSWSC 1034
Category: Procedural and other rulings
Parties: State of New South Wales (Plaintiff)
Ahmad Elomar (Defendant)
Attorney General of New South Wales (Applicant on Motion)
Representation:
Counsel:
B Hughes SC / T Phillips / C Palmer (Plaintiff)
G James QC (Defendant)
P Singleton (Applicant on Motion)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Lawyers Corp (Defendant)
Crown Solicitor’s Office (Applicant on Motion)

File Number(s): 2018/121186
Publication restriction: NON PUBLICATION ORDER on name and any information that would identify deponent. NON PUBLICATION ORDER in relation to Mr CHEIKA & Mr BALADAJAM vacated.

EX TEMPORE Judgment

HIS HONOUR: In this matter, the State of New South Wales tendered an exhibit, which was marked as confidential on the basis of the provisions of the Court Suppression and Non-publication Orders Act 2010 associated with national or international security. Material in the judgment that was delivered yesterday (State of New South Wales v Elomar (No 2) [2018] NSWSC 1034) quotes from that material.
At the hearing yesterday the issue was raised and a suppression order was made in unusual terms, in that it required any report of the judgment to refer to the fact that at this stage the factual matters were only allegations of fact and not proved to the usual standard; and, secondly, would not refer to any item directly derived from what has been expressed as "intelligence sources".
The parties, at least initially, seemed to operate on the basis that as the judgment was already published on Caselaw, to use the words of senior counsel, the "horse had bolted". The Court did seek to disabuse that view in the sense that the parties were advised the judgment could be taken down, but no-one seemed to take that suggestion any further than the Court’s statement of what was possible.
The Court understands the application by the Attorney General in this and other matters. Many issues associated with National Security at least, and probably international security, relating to terrorism offences come before the Court.
The Court is satisfied from what it knows of the material and of the source of the material, that an order under s 8(1)(b) of the Court Suppression and Non‑publication Orders Act is necessary to prevent prejudice to the interests of New South Wales and indeed the Commonwealth in relation to National or International Security.
As a consequence the Court makes the following orders:

The Judgment (No 2), in its present form in this matter, is to be removed from Caselaw and, as and when a redacted version is provided, the redacted version will be published to Caselaw until further order of the Court.

The parties are to provide a redacted version of Judgment (No 2) in this matter to be published on Caselaw.

The Court thanks the Attorney General for raising the matter appropriately and having consulted with the other parties. While consent is an issue in this area of the public interest in open justice, it is important that consent not override that public interest. The Court takes into account that public interest in making the orders above.
The Court envisages that these suppression orders will be effective, at least until such time as final findings of facts can be made and possibly beyond that time. At this stage it is only necessary in relation to that length of time.

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The matter of State of New South Wales v Elomar (No 3) was heard in the Supreme Court of New South Wales, where the appellant, the State of New South Wales, sought to appeal a decision that had suppressed certain details from a judgment due to national security concerns. The dispute involved the suppression order placed on a judgment that contained references to matters obtained from a confidential exhibit, specifically those that pertained to national or international terrorism intelligence. The respondent, Elomar, had argued that the suppression of these details infringed upon the principle of open justice, which is fundamental to the Australian legal system.

The court was tasked with determining whether the suppression order was justified under the circumstances and whether the principle of open justice was adequately balanced against the need to protect sensitive information that could have implications for national security. The legal issues at hand involved the interpretation and application of the suppression order provisions, the weight to be given to the principle of open justice, and the extent to which the court could consider information that had been obtained from a confidential exhibit in making its decision.

The court held that the suppression order was justified in this instance, as the matters in question pertained to national or international terrorism intelligence, which, if disclosed, could have seriously compromised national security. The court found that the suppression order did not unduly infringe upon the principle of open justice, as the information was highly sensitive and its disclosure could have had dire consequences. The court also noted that the original judgment had been redacted on the application of the Attorney General, which further demonstrated the gravity of the information and the necessity for the suppression order. Consequently, the appeal was dismissed, and the suppression order was upheld.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	State of New South Wales v Elomar (No 3) [2018] NSWSC 1158
Hearing dates:	06 July 2018
Date of orders:	06 July 2018
Decision date:	27 July 2018
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	(1) The Judgment (No 2), in its present form in this matter, is to be removed from Caselaw and, as and when a redacted version is provided, the redacted version will be published to Caselaw until further order of the Court. (2) The parties are to provide a redacted version of Judgment (No 2) in this matter to be published on Caselaw.
Catchwords:	SUPPRESSION ORDER – principle of open justice – reference in judgment to matters obtained from confidential exhibit – matters of national or international terrorism intelligence – original judgment redacted on application of Attorney General -
Legislation Cited:	Court Suppression and Non‑publication Orders Act 2010, s 8(1)(b)
Cases Cited:	State of New South Wales v Elomar (No 2) [2018] NSWSC 1034
Category:	Procedural and other rulings
Parties:	State of New South Wales (Plaintiff) Ahmad Elomar (Defendant) Attorney General of New South Wales (Applicant on Motion)
Representation:	Counsel: B Hughes SC / T Phillips / C Palmer (Plaintiff) G James QC (Defendant) P Singleton (Applicant on Motion) Solicitors: Crown Solicitor’s Office (Plaintiff) Lawyers Corp (Defendant) Crown Solicitor’s Office (Applicant on Motion)
File Number(s):	2018/121186
Publication restriction:	NON PUBLICATION ORDER on name and any information that would identify deponent. NON PUBLICATION ORDER in relation to Mr CHEIKA & Mr BALADAJAM vacated.