AA v State of NSW

[2013] NSWSC 1038

Supreme Court

New South Wales

Medium Neutral Citation:

AA v State Of NSW [2013] NSWSC 1038

Hearing dates:

16/07/2013

Decision date:

16 July 2013

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1) Order, pursuant to s 10 of the Court Suppression and Non-Publication Orders Act 2010, that until further order, the name, address and physical appearance or image of the plaintiff not be published or otherwise disclosed directly, or indirectly by any information which tends to reveal those matters in connection with this litigation.

(2) Order that the plaintiff's name in these proceedings be referred to by a pseudonym, namely "AA", unless it be necessary to reveal his name to any person for the purpose only of the proper preparation and presentation of the proceedings.

(3) Order that the costs in the motion be costs in the cause.

(4) Stand the proceedings over for further directions on 18 July 2013 at 9am before the Registrar.

Catchwords:

PROCEDURE - interlocutory issues - suppression orders - public interest - proper administration of justice.

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010
Supreme Court Act 1970

Cases Cited:

Fairfax Digital Australian & New Zealand Pty Limited v Ibrahim (2012) NSWCCA 125;
Rinehart v Welker (2011) NSWCA 403

Category:

Procedural and other rulings

Parties:

AA (P)
State of NSW (D)

Representation:

Counsel:
A J MacAuley (P)
N J Owens (D)

File Number(s):

2013/208342

EX TEMPORE Judgment

SUPPRESSION AND NON-PUBLICATION ORDER IN RESPECT OF NAME, ADDRESS AND PHYSICAL APPEARANCE OR IMAGE OF THE PLAINTIFF IN CONNECTION WITH THIS LITIGATION

ORDER THAT THE PLAINTIFF'S NAME IN THESE PROCEEDINGS BE REFERRED TO BY THE PSEUDONYM "AA"

1. This is an application by the plaintiff pursuant to the provisions of the Court Suppression and Non-Publication Orders Act 2010 ('the Act'), for an order that there be no publication of the plaintiff's name, his address, his physical appearance and his offending history with respect to these proceedings. He also seeks an order that there be no disclosure of any information tending to reveal those matters.

1. The application is made by Notice of Motion and seeks, alternatively to an order under s 7 of the Act, an interim order under s 10 of the Act.

1. Since this application is made in the course of the duty list, and the reasons which I have given in support of the orders which I make are necessarily truncated, I regard it as appropriate only to deal with the application for an interim order pursuant to s 10 of the Act. I note that the substantive proceedings have been listed for hearing on the first available date, and that the final hearing of this interim order will take place then.

1. The plaintiff seeks principal relief by a summons filed on 9 July 2013. The relief claimed is a declaration that a decision made by the Chief Executive of Housing New South Wales on 9 April 2013 was vitiated by legal error and/or jurisdictional error. The plaintiff seeks an order pursuant to s 69 of the Supreme Court Act 1970 setting aside that, and the antecedent, underlying decision.

1. The plaintiff's claim is for judicial review of both of these decisions of Housing New South Wales. Those decisions are in the past and any order of this Court would relate only to the validity of those decisions. The evidence in support of the application, and the evidence in the proceedings generally, discloses that the plaintiff is a person who has in the past attracted significant publicity because of his lengthy history of sexual offences. As well as a lengthy history of sexual offences, the plaintiff has been, and continues to be, subject to an extended supervision order in accordance with the relevant legislation.

1. It is fair to say that the news articles, that have been tendered, would properly be described as couched in alarmist terms or couched in terms calculated to attract prurient interest and irrational discussion.

1. Currently the extended supervision order will expire on 14 December 2013. One of the conditions of that order is that the plaintiff must reside at accommodation approved in advance by the relevant supervisory officer. The extended supervision order contains 35 other conditions dealing with the plaintiff's behaviour, places where he is restricted from attending and obligations with respect to treatment. It is a matter of public record going back to at least 2007, that the plaintiff has been convicted for various sexual offences and has been the subject of an extended supervision order. The terms of that supervision order are, so far as I am aware, public.

1. However, the evidence satisfies me that, although the plaintiff's history of offending is well known publicly, as is the fact that he is subject of an extended supervision order, his present address and any current or recent photograph of him is not in the public domain.

1. As I have said, the proceedings that are sought to be the subject of these orders are proceedings designed by the plaintiff to secure what he regards as no more than his lawful entitlement, namely, to be dealt with fairly and in accordance with law by Housing New South Wales.

1. The plaintiff submits that an order is necessary under the Act because it is likely that the nature of these proceedings, the fact that he is seeking leave of the kind which is being sought and the demonstrated history of irrational and prurient publicity, all combine to mean that the administration of justice would be prejudiced unless an order was made.

1. As well, the plaintiff submits that such an order is necessary to protect his safety and that it is in the public interest for the order to be made.

1. A decision on an interlocutory application, such as this, is not a place for the detailed discussion of the principles which are applicable in the making an order under the Court Suppression and Non-Publication Orders Act. I accept I am bound to apply the principles enunciated by the Court of Appeal in its decisions of Rinehart v Welker [2011] NSWCA 403 and Fairfax Digital Australian & New Zealand Pty Limited v Ibrahim [2012] NSWCCA 125.

1. I accept that the Act obliges the Court to have regard to the principle of open justice. I also accept that the principle of legality favours a construction of the legislation, which has the least adverse impact upon the open justice principle, and the common law freedom of speech.

1. I am obliged to weigh up the open justice principle and the public interest on the one hand, and on the other, the interests of the plaintiff and of this litigation generally. I am also entitled to have regard to the fact that the broader concept of the administration of justice includes consequences not just for the present case, but for future cases.

1. The principle of open justice, in its application in this case, will be able to take full effect if the public is able to hear the case being conducted, to understand why it is that the plaintiff seeks the relief which is claimed, whether the decisions of Housing New South Wales are valid and appropriate administrative decisions, and by reading the judgment of the Court, articulating what relief ought be granted and the reasons for that relief.

1. The present identity of the plaintiff, his present address and his present appearance plays no role at all in the concept of open justice as it would apply to this case. The nature of the case is not specific to this plaintiff. The principles to be applied are of general application and are not to be determined by the plaintiff or his identity.

1. On the other hand, the past history of publicity about the plaintiff and his activities provides a strong reason why the administration of justice would not be served by having the otherwise somewhat routine administrative decision in this case being dealt with by reference to the name, address or identity of this particular plaintiff.

1. There is a real risk, in my assessment, that making that material available would lead to misleading and unbalanced reporting and would also lead to, or else may lead to, deterring the plaintiff from continuing with these proceedings. In other words, I regard it as inevitable that in order to conduct these proceedings and pursue the rights which he claims he has, the plaintiff is faced with doing so with full revelation of his current address and physical appearance, or else not doing it at all.

1. Obliging the plaintiff to elect between these two alternatives, or at least the risk of those two alternatives occurring, does not seem to me to be in the public interest. However, I am only determining these matters on an interim basis, and I am satisfied that the public interest is to be served by making, and it is necessary for an order of the kind which follows to be made, to prevent prejudice to the proper administration of justice and to protect the safety of the plaintiff.

1. However, there doesn't seem to me to be any reason why there should be a non-publication order of the entirety of the proceedings. The various interests can be best protected by an order that the plaintiff be referred to by a pseudonym and that his address and present physical appearance, or image, not be published or otherwise disclosed by any information which may reveal those matters. The plaintiff's offending history is a matter of longstanding public record and I see no purpose to be served by any order seeking to prevent publication of that.

1. Accordingly, I make the following orders:

(1) I order pursuant to s 10 of the Court Suppression and Non-Publication Orders Act 2010, that until further order, the name, address and physical appearance or image of the plaintiff not be published or otherwise disclosed directly, or indirectly by any information which tends to reveal those matters in connection with this litigation.

(2)   I further order that the plaintiff's name in these proceedings be referred to by a pseudonym, namely "AA", unless it be necessary to reveal his name to any person for the purpose only of the proper preparation and presentation of the proceedings.

(3)   I order that the costs in the motion be costs in the cause.

(4)   I stand the proceedings over for further directions on 18 July 2013 at 9am before the Registrar.

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Decision last updated: 05 August 2013