AB v Curry (No. 3) - [2015] NSWSC 1677

Supreme Court

New South Wales

Medium Neutral Citation: AB v Curry & Anor (No. 3) [2015] NSWSC 1677
Hearing dates: 23 October 2015
Decision date: 23 October 2015
Jurisdiction: Equity
Before: White J
Decision:
Refer to para [34] of judgment.

Catchwords: PRACTICE AND PROCEDURE – suppression and non-publication orders – redaction of Court’s published reasons for decision – identification of complainant in sexual abuse offence proceedings – plaintiff had adduced evidence relating to her physical and sexual abuse while in foster care in support of her family provision application – no suppression or non-publication orders were sought at trial – plaintiff sought removal or redaction of Court’s reasons after they had been published – reasons identified the plaintiff and the circumstances surrounding her foster care, but not the alleged offender – where police are investigating the plaintiff’s allegations of abuse, but no criminal proceedings have been commenced – where defendants’ counsel published a copy of the Court’s reasons on his website – whether it is necessary to remove or redact the Court’s reasons in order to prevent prejudice to the proper administration of justice – consideration of principles of open justice – consideration of the policy underlying s 578A of the Crimes Act 1900 (NSW) in relation to publication of information identifying complainants in sexual abuse offence proceedings – held, allowing the application in part and ordering the removal of the Court’s reasons and their replacement with redacted reasons, that while s 578A does not apply, the policy underlying that section informs what is necessary for the proper administration of justice
Legislation Cited: Children (Care and Protection) Act 1987 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Court Suppression and Non-Publication Orders Act 2010 (NSW)
Crimes Act 1900 (NSW)
Royal Commissions Act 1923 (NSW)
Cases Cited: D1 v P1 (No 2) [2012] NSWCA 440
John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465
John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344
Rinehart v Welker [2011] NSWCA 403
Category: Procedural and other rulings
Parties: AB (Plaintiff)
Aileen Esme Curry (1st Defendant)
Juliet Anna Greentree (2nd Defendant)
Representation:
Counsel:
In person via telelink
L Clarke (Defendants)
Solicitors:
John Hollier, Solicitor (Plaintiff)
Stuart, Cook & Braham (Defendants)

File Number(s): 2014/215475

Judgment

HIS HONOUR: This is an application by the plaintiff brought by notice of motion filed on 19 October 2015. She seeks an order that "the Court withdraw the publication of the judgements in this matter of 22 July 2015 and 28 August 2015". She otherwise seeks such further or other order as the Court thinks fit.
The plaintiff's claim was for a family provision order in relation to the estate of her former foster mother. As part of her claim, the plaintiff swore an affidavit in which she went into considerable detail about her relations with her foster parents from when she was four until she was 16. She gave evidence,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AB v Curry (No. 3)

Details

AGLC: AB v Curry (No. 3) [2015] NSWSC 1677
Case: [2015] NSWSC 1677
Decision Date: 23 October 2015

CaseChat Overview and Summary

The case of AB v Curry (No. 3) involved the plaintiff, AB, who sought to amend the reasons for decision published by the court in her family provision application. The application was made after the reasons had already been published, and the plaintiff sought either the removal or redaction of these reasons. The reasons identified AB and detailed her experiences of physical and sexual abuse while in foster care, but did not name the alleged offender. The defendants' counsel had published a copy of the reasons on his website, and the police were investigating AB's allegations of abuse, though no criminal proceedings had commenced. The central issue for the court was whether it was necessary to remove or redact the court's reasons to prevent prejudice to the proper administration of justice, while also considering the principles of open justice and the policy underlying section 578A of the Crimes Act 1900 (NSW).

The court was required to balance the need for transparency and the open administration of justice with the potential prejudice to AB if her identity and the details of her case were made public. The court considered the principles of open justice, which are fundamental to the Australian legal system, but also recognised the policy behind section 578A, which aims to protect complainants in sexual abuse proceedings from harm caused by the publication of their identity. Although section 578A did not strictly apply to this case, the court found that its underlying policy was relevant to the decision at hand. The court held that it was necessary to ensure that the reasons for decision were redacted to protect AB's identity and the circumstances surrounding her foster care, while still allowing for the reasons to be published to maintain the principles of open justice.

In its decision, the court allowed the application in part and ordered that the published reasons be removed and replaced with redacted reasons. The court recognised the importance of maintaining the integrity of the legal process while also protecting individuals from potential harm. By ordering the redaction of the reasons, the court aimed to strike a balance between these competing interests. The final order was that the published reasons for decision were to be replaced with redacted reasons, ensuring that AB's identity and the sensitive details of her case were protected, while still allowing the reasons to be available for legal and procedural purposes.

Orders