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

1. 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.

2. 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, in substance, of having been rejected by her foster father when she was 16 and having been removed to a new foster placement by the Department of Community Services, where, she deposed, she was subjected to physical and sexual abuse.

3. In support of her evidence as to the nature of her relationship with her foster parents and the reason that relationship ended (apparently due to the harsh attitude of the foster father), the plaintiff tendered as an exhibit to her affidavit records of the Department of Community Services, which I understand were produced on subpoena. This evidence was an important part of the plaintiff's claim for provision. It was directed to show that she had been brought up as a child of the deceased and that she was dealt with harshly and unfairly when removed from her foster parents' care, and suffered as a result. This all went to the strength of her moral claim on the deceased's testamentary bounty.

4. The case was heard on 21 July 2015, and I gave judgment and oral reasons the next day. The parties were directed to provide written submissions and any evidence on costs. In the usual way, my oral reasons were transcribed and the judgment was published on the Court's website. No application was made at the hearing for any non-publication order in respect of the identity of the parties or any of the evidence.

5. On 21 August 2015 my Associate received an email from the plaintiff herself, requesting that the judgment, which by then had been published on Caselaw, be removed urgently. She said that the reasons for that application were "due to the sensitive nature of the information [and] Because other people mentioned in the judgement are currently part of an ongoing criminal investigation". She also asked that a barrister, Mr Kim Morrissey, who had appeared for the defendants at the hearing, be required to remove the judgment, or the link to the case, from his website.

6. I gave judgment on costs on 28 August 2015. After making costs orders and publishing reasons for them, I said the following to counsel then appearing for the plaintiff:

“I understand from my associate Mr Ang that your client has made some application to the court that the judgment that has been published on Case Law, the judgment of 22 July, be removed from Case Law. I don't know the basis for that request but if it is to be pressed you can make that application now."

7. Mr Ang of counsel, who then appeared for the plaintiff, said that he was obtaining instructions as to the precise form of orders that would be sought. I directed that an application be brought by notice of motion, supported by affidavit. It is that notice of motion with which I am now dealing. It is supported by an affidavit made by the plaintiff dated 15 September 2015.

8. The plaintiff's affidavit covers three general areas.

9. First, she expresses concern that at the hearing she was cross-examined by Mr Morrissey, who appeared for the defendants, on a submission she had made to the Royal Commission into Institutional Responses to Child Sexual Abuse.

10. Secondly, the plaintiff complains of the publication on a website kept by Mr Morrissey of a link to the judgment. She has annexed correspondence from the Caselaw support officer, Library Services of the New South Wales Department of Justice, who advised Mr Morrissey of conditions upon which the reproduction of judicial decisions was permitted without infringing copyright. The correspondence from Ms Donna Reece, the Caselaw support officer, to Mr Morrissey referred to a Robots Exclusion Protocol (REP) that is used to prevent search engine robots, with the exception of a NSW Caselaw Search, from indexing and providing direct links within search result pages to judicial decisions published on NSW Caselaw. I understand from the plaintiff's submissions that her concern is that if her name is placed in a Google search, the link from Mr Morrissey's website will take the reader to the judgment; whereas a person would have to be specifically searching for the judgment on other websites, such as Caselaw and before such a link would take the reader to the judgment.

11. The third area covered by the plaintiff's affidavit concerns the criminal investigation to which she had made reference in the email to my Associate, referred to above at [5], but about which no evidence had been provided. The plaintiff annexed correspondence that shows that the New South Wales Police Force is currently investigating her allegations of physical or sexual assault committed decades ago when she was 16. She deposed to having been informed by the police officers responsible for the investigation that:

“the publication of the judgement could harm the criminal investigation and prosecution of the alleged perpetrator and any relevant associates, because the historical records and anyone referenced during this time and subsequent times in my life, as well the complete DOCS file, become evidence related to the ongoing criminal investigation.”

12. This statement does not explain how publication of the judgment to the world or to any individuals could prejudice a criminal investigation.

13. It is not uncommon for judgments, including judgments in civil proceedings, to be suppressed when there are pending criminal proceedings. That is usually because of the risk of potential jurors accessing a website. That is not this case, and there is no evidence before me to show how the criminal investigation would be prejudiced by the publication of the judgment.

14. An order for the withdrawal of the publication of the judgment would be made in the Court's inherent jurisdiction or pursuant to the Court Suppression and Non-Publication Orders Act 2010 (NSW). That Act defines a non-publication order as meaning an order that prohibits or restricts the publication of information. "Information" is defined to include any document. It seems to me that a restriction or prohibition on the publication of the judgment would be a non-publication order within the meaning of the Act. Section 6 of that Act provides that:

“In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.”

15. Section 8(1) specifies the grounds on which a non-publication order may be made. They are as follows:

“8Grounds for making an order

(1)     A court may make a suppression order or non-publication order on one or more of the following grounds:

(a)    the order is necessary to prevent prejudice to the proper administration of justice,

(b)     the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,

(c)     the order is necessary to protect the safety of any person,

(d)     the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency),

(e)     it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.”

16. A non-publication order must specify the ground or grounds on which the order is made (s 8(2)).

17. I do not think that a non-publication order could be made on any of grounds in paras (b)-(e) of subs (1). Paragraph (b) is clearly irrelevant. As to para (c) there is no evidence that such an order is necessary to protect the safety of any person. As to para (d), the plaintiff says that the publication of the judgment has caused her distress and, she would say, undue distress. I accept that she is distressed and I accept that the level of distress she exhibits could be described as undue. But para (d) relates only to distress or embarrassment to a party or witness in criminal proceedings. Paragraph (d) is not engaged in this case. I do not think there is any question of public interest other than the public interest in the proper administration of justice that would engage para (e).

18. The question is whether the order is necessary to prevent prejudice to the proper administration of justice. In Rinehart v Welker [2011] NSWCA 403 Bathurst CJ and McColl JA said at [27] that "necessary" is a strong word. The Court of Appeal has repeated what was said when the matter was dealt with at common law in John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344 at [21], that such orders should only be made in exceptional circumstances. In John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 476, in a passage quoted with approval in Rinehart v Welker, McHugh JA said:

“The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule."

19. The principle of the administration of open justice applies not only to the hearing but to the reasons for judgment. Although there is scope for the making of redactions, a matter to which I will return, such redactions should not preclude the judge's conveying an adequate account of the litigation and the reasons underlying the orders. But provided that can be done, the interests of open justice can be achieved with protections being provided of other important interests. Thus, where litigation is brought to protect trade secrets or confidential information, it is usual to redact parts of a judgment so that the very object of the proceedings, being to protect confidential information or trade secrets, will not be defeated by the reasons themselves.

20. The concept of administration of justice goes wider than the interests of a particular case. Thus, in a prosecution for blackmail, the identity of the victim or the alleged victim of the blackmail will typically be anonymised. One of the reasons for that is to further the administration of justice lest other victims of other blackmailers, or perhaps the same blackmailer, be deterred from making complaints. I will return later in these reasons to the relevance of that analogy.

21. Before turning to what I consider to be the essential matter raised by the plaintiff's application, I should deal with the first two areas that I had identified that were covered in her affidavit. The first concerned the complaint regarding the tender of a submission to the Royal Commission. At the hearing the plaintiff was cross-examined without objection about a submission she had made to the Royal Commission. This was relevant to the assessment of her future earning capacity and, hence, her need for provision. The submission was tendered. The tender of the submission document was objected to by the plaintiff's counsel on the grounds of relevance and on that ground only. I thought the submission was potentially relevant and admitted it. Later, when counsel for the defendants in final submissions addressed that document, I asked if it had been voluntarily produced by the plaintiff to the defendants. I was told that it had not, but it was available on the Internet. Having had the opportunity to consider the matter in the intervening period, I raised the question whether the document should be or should have been rejected by reasons of ss 11 and 17 of the Royal Commissions Act 1923 (NSW), but I then added that in a civil proceeding the document would probably only be inadmissible over objection, and the only objection taken was on the grounds of relevance: see transcript p 84. I was not asked to exclude the document. It was not rejected. But it ultimately played no significant part in the decision. There is no reference to the document in the reasons for judgment and I think the matter raised about this document is a distraction.

22. The publication of the judgment on Mr Morrissey's website is a legitimate matter of concern for the plaintiff, and indeed for the Court. There are conditions on Mr Morrissey's right to reproduce the judgment. He is not here today and has not been able to be heard. But I think he should be heard as to whether his publication of the judgment on his website fulfils the conditions upon which he was authorised to publish it. He did convey to the plaintiff or her solicitor by 25 August this year, that is, almost two months ago, that the judgment would be removed. It appears from documents handed up this afternoon that on 21 August he wrote to a Mr Smith of a company called Jasweb Pty Ltd, which I assume is a company that maintains his website, asking that the judgment be removed. As at today it still has not been removed. For reasons to which I will come, it will have to be removed in its present form by reason of an order I propose to make.

23. I return to the real question of whether the order sought, or a different order, is necessary for the administration of justice. In her affidavit the plaintiff said that if it is not possible to have the complete judgment and costs order suppressed, then she requested that any reference to her name, family names, historical events or DOCS file references, any letter references between family members, historic or current, and mention of any parties related either directly or indirectly to the DOCS file, be suppressed. I do not accept that the pendency of the criminal investigation creates any risk to the administration of justice that would justify either the complete withdrawal of publication of the judgment or the suppression of all of the details so requested by the plaintiff.

24. However, there is a further consideration that arises from s 578A of the Crimes Act 1900 (NSW). The plaintiff, being self-represented on this application, understandably did not refer me to that provision. Nonetheless, I think it is relevant. Section 578A(2) provides that:

“A person shall not publish any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant."

25. The section does not have a current operation. There are no current prescribed sexual offence proceedings. However, the policy that informs s 578A of the Crimes Act may at least include the policy of not deterring those who complain of sexual offences from coming forward for fear of their identity being revealed. That would bear some analogy to the policy which provides for anonymity to be given to victims of blackmailers. The provision of such anonymity is regarded as necessary for the administration of justice. It appears to me that the policy underlying s 578A can also be said to be necessary for the administration of justice in the same way.

26. In exercising the power to make a suppression order, I must take into account, as a primary objective of the administration of justice, the safeguarding of the public interest in open justice. But the public interest in open justice in this case, I think, does not require further dissemination or further publication of the name of the plaintiff or the means of her identification by ordinary members of the public. The judgment lays down no particular matter of principle. But I do not think that that is a relevant consideration. It is necessary in the interests of open justice that members of the public be able to have an adequate account of the litigation and the reasons underlying the orders made. But for the reasons I have given, I accept that there should be some modification to the judgment in its publicly available form so as to seek to protect the anonymity of the plaintiff.

27. It appears to me that the following changes should be made to published versions of the judgment, and I will direct that the judgment having citation [2015] NSWSC 1063 and the costs judgment having citation [2015] NSWSC 1209 be removed from Caselaw, and that all reasonable steps be taken to have them removed from the and other public websites. The judgment should also be removed from Mr Morrissey's website until a redacted form of the judgment is publicly available.

28. So far as the redactions themselves are concerned, the name of the plaintiff where it appears should be anonymised and I will substitute some letters, probably AB. I do not think the name of the defendant, who is the executor of the deceased's estate, need be anonymised. The name of the deceased should be anonymised. The name of the deceased will be replaced with letters. The name of the deceased's sister should also be anonymised and be replaced by letters. The name of the plaintiff's daughter should be anonymised. If the plaintiff is called AB, the plaintiff's daughter can be called DB. The name of the deceased's husband should be anonymised with letters. The name of the place at which the plaintiff was placed with foster carers, where she said she was subjected to physical and sexual abuse, should be anonymised.

25. I do not accept that the redaction should go so far as to remove all references to the files or the identity of the departmental officers of the Department of Community Services in the 1970s who made reports that appear on the file that was tendered. As I said, the documents were tendered by the plaintiff and no suppression order was sought in respect of them.

26. The Children and Young Persons (Care and Protection) Act 1998 (NSW) prohibits a person’s disclosing any information obtained in connection with the administration or execution of that Act unless the disclosure is made with the consent of the person from whom the information was obtained, was in connection with the administration or execution of the Act, or was with other lawful excuse. There are some additional exclusions which are not relevant. Neither that Act nor its predecessor, the Children (Care and Protection) Act 1987 (NSW), were the operative Acts at the time that the plaintiff was in foster care. Section 115 of the Children (Care and Protection) Act 1987 contained a similar prohibition on disclosure of information. Even if those provisions apply to the present case, they would not apply to the disclosure that was made by the plaintiff herself for the purposes of the court proceedings. I have found nothing in the Child Welfare Act of 1939, which I think was the relevant legislation when the plaintiff was in foster care, which contained a similar prohibition.

27. The information from the Department's files forms a substantial part of the reasons. The evidence about the plaintiff’s relationship when she was a foster child was a significant consideration in her claim for provision. Redaction of the reasons to the extent sought by the plaintiff in relation to that material would not convey an adequate account of the litigation or provide a reader with the ability to obtain a proper understanding of the reasons leading to the orders.

28. In the same way, the references to correspondence between what the plaintiff calls "my family members historical or current" would involve the suppression of communication between the plaintiff and the deceased, and correspondence written by the deceased, which again were highly material to the plaintiff's case, the defendant's defence of that case, and the reasons for judgment. Again, no adequate account of the litigation could be obtained if all of that material were redacted.

29. There are limits and problems associated with the redactions of judgments (see, for example, D1 v P1 (No 2) [2012] NSWCA 440 at [6] and [7]). Redactions to the extent sought by the plaintiff would infringe the principle of open justice. The redactions or the anonymising of references to people and place would not go more than I think is necessary to protect the administration of justice in the wider sense to which I have referred.

30. For these reasons, and subject to any submissions the plaintiff or counsel for the defendant might have as to the precise form of the orders to be made, I propose to make the following orders:

1. The reasons for judgment known as [AB] v Curry & Anor [2015] NSWSC 1063 and [AB] v Curry & Anor (No 2) [2015] NSWSC 1209 be removed forthwith from the NSW Caselaw website.

2.   That the registrar or other appropriate officer of the Court request legal publishers, being LexisNexis, Westlaw and Jade BarNet, to remove the judgments from their websites.

3.   That Mr Morrissey forthwith cause the judgment to be removed from his website.

4.   Before the judgments are republished on Caselaw, that the names of persons and place be anonymised as follows:

a)    that the name of the plaintiff be replaced with letters;

b)   that the name of the deceased, her husband and sister be replaced with appropriate letters;

c)   that the place to which the plaintiff was moved after being removed from foster care with the deceased and her husband be anonymised;

d)   that the names of the plaintiff's husband or partner or daughters be anonymised.

Those changes to be made in the judgments are to include the quotations and documents in which such names appear.

5.   I direct that Mr Morrissey contact Google or cause contact to be made with Google to request it to remove the link called "View PDF of Sheilds v Correy - Kim Morrissey order that the prayers for relief in the plaintiff's notice of motion filed on 19 October 2015 be otherwise dismissed, with no order as to costs.

7. These orders are made on the ground in s 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010.

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Postscript: Further redactions have been made to the judgments to be republished to protect the identity of the plaintiff.