Ad v Morrison
[2013] NSWSC 625
•22 May 2013
Supreme Court
New South Wales
Medium Neutral Citation: AD v Morrison [2013] NSWSC 625 Hearing dates: 22 May 2013 Decision date: 22 May 2013 Jurisdiction: Common Law Before: Davies J Decision: 1. Leave to the Plaintiff to file a further Amended Summons with respect to the name of the Plaintiff.
2. Orders as per Plaintiff's Amended SMO in the following terms:
Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (the Act):
(a) restrict the disclosure of information concerning the identification of the Plaintiff's three children;
(b) prohibit the publication of information identifying the Plaintiff's three children or any information concerning the evidence given in the Local Court proceedings that might tend to identify those persons; and
(c) prohibit the publication of the making of this application as far as the Plaintiff's children are concerned.
(3) In accordance with s 8 of the Act, the ground upon which the orders are made is that it is in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.
(4) In accordance with s 11 of the Act these orders apply throughout the Commonwealth.
(5) I make an interim order under s 10 of the Act in respect of the identity of the Plaintiff and his wife for a period of fourteen days or if any appeal is instituted in that time until the conclusion of the appeal subject to any order that the Court of Appeal itself may make.
Catchwords: PROCEDURE - suppression orders sought - administrative law proceedings - certiorari sought against magistrate's judgment on costs of Apprehended Domestic Violence proceedings - whether identity of Plaintiff and his family should be suppressed - distinction between children and adults in the litigation Legislation Cited: Court Suppression and Non-publication Orders Act 2010
Crimes (Domestic And Personal Violence) Act 2007Category: Interlocutory applications Parties: AD (Plaintiff)
Kimberley Michelle Morrison (First Defendant)
The Local Court of NSW (Second Defendant)Representation: Counsel:
S Beckett (Plaintiff)
Mentioned by S Beckett (First Defendant)
Submitting Appearance (Second Defendant)
Solicitors:
Henry Davis York (Plaintiff)
McGirr Lawyers (First Defendant)
Crown Solicitors Office (Second Defendant)
File Number(s): 2013/108970
Judgment
The Plaintiff commenced proceedings in this Court on 10 April seeking orders in the nature of certiorari and mandamus directed to a Magistrate in the Local Court who determined a costs application adversely to the Plaintiff. The costs application had been made by the Plaintiff at the conclusion of the Local Court proceedings which included an application for an Apprehended Violence Order as well as criminal proceedings.
Those proceedings arose out of the activities and behaviour of the First Defendant in the present proceedings. Suppression orders were made under s 45 of the Crimes (Domestic And Personal Violence) Act 2007 ("the C(DAPV) Act") on 24 August 2009 and were varied and extended on 9 May 2011.
Section 45 of that Act prevents the name of any child for whose protection or against whom an Apprehended Violence Order is sought in any Apprehended Violence Order proceedings from being published or broadcast before the proceedings are disposed of. Sub-section (5) says that a reference to the name of a person includes a reference to any information, picture or other material that identifies the person that is the child, or is likely to lead to the identification of the person.
On 5 March 2012 an Apprehended Violence Order was made by the Magistrate in the Local Court for a period of five years. In relation to the criminal offences the penalty imposed was the imposition of a s 9 bond for the Defendant to be of good behaviour for a period of four years.
The Plaintiff subsequently sought the costs of the proceedings from the Magistrate. On 12 November 2012 the Magistrate gave his judgment on that costs application and declined to order costs in favour of the Plaintiff.
The Plaintiff now applies for orders under the Court Suppression andNon-publication Orders Act 2010 ("the Act") for himself, his wife and his children in relation to the present proceedings. Section 7 of the Act contains the power to make the order and s 8 provides the grounds for the making of an order. Ms Beckett of counsel who appears for the Plaintiff told me that reliance was placed on grounds (c) and (e) in s 8(1) of the Act.
Section 8 (1) provides:
A Court may make a suppression order or a non-publication order on one or more of the following grounds:
(c) the order is necessary to protect the safety of any person.
...
(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.
There is evidence before me that subsequent to the imposition of the Apprehended Violence Order and the s 9 bond, the First Defendant published on her website chapters of a book that appear in substance to have dealt with the subject matter of the Local Court proceedings with her particular slant on the disputes.
The material contained in that book identified the Plaintiff and his wife and their children and certain other matters which might be thought to have provided some means of identification at least of where those children attend school. I do not have the terms of the Apprehended Violence Order nor the s 9 bond to know whether the publication of the book containing the information it did breached any of the conditions of that order or that bond.
Nevertheless, what is clear is that in the period of time between the commencing of the Local Court proceedings and today, the First Defendant has put into the public domain a number of matters identifying the Plaintiff and his family and the substance of the matters which were the concern of the Local Court. No doubt, that has caused very justifiable stress to the Plaintiff and his family.
The difficulty in relation to the orders sought in the present case is finding a proper basis upon which any orders should be made other than to protect the identity of the three children. Section 45 can only be applied by analogy because it is difficult to see how the present proceedings could be regarded as Apprehended Violence Order Proceedings even bearing in mind the fairly wide definition in s 3(1) of the C(DAPV) Act.
The starting point has to be s 6 of the Act which says that in deciding whether to make a suppression order or non-publication order a Court must take into account that the primary objective of the administration of justice is to safeguard the public interest in open justice.
Ms Beckett urges upon me that the word "safety" in s 8(1)(c) of the Act should be construed widely to include the upset and emotional sequelae that may well follow from further publication of matters concerned with these unfortunate proceedings. I do not think it is easy to construe the word "safety" so widely because unsatisfactory, unpleasant or even vicious comment about a person who commences Court proceedings which might cause them emotional upset cannot have been intended to justify the suppression of the identity of such a person.
The purpose of s 8(1)(c) must principally have been directed to the protection of people whose lives or physical wellbeing might be in jeopardy from other persons by reason of the identification of them in relation to Court proceedings. Informers and the like are persons who come to mind.
The other basis for suggesting that an order ought to be made was that it was in the public interest to do so and that the public interest significantly outweighed the public interest in open justice. Bearing in mind that the primary objective of the Act, it seems to me that there is certainly an onus and, perhaps, a heavy onus on a person seeking to argue that public interest in suppression significantly outweighs the public interest in open justice.
The present proceedings, albeit arising out of apprehended personal violence proceedings and criminal proceedings, are concerned with the discrete legal issue relating to the costs of those Local Court proceedings. Administrative law principles must be applied to the decision of the Magistrate to show that there is an error of law justifying prerogative intervention in relation to that decision.
It would scarcely be necessary for there to be any airing of more than a basic outline of the facts which gave rise to the Local Court proceedings in the first place for the proper determination of the present proceedings.
As regards the children, it is suggested that by reason of s 45(5) of the C(DAPV) Act that if the Plaintiff himself is able to be identified that that is likely to lead to the identification of the children.
The children, of course, as appears clear from the book on the website, have already been identified together with other material which might indicate where at some particular times they may be able to be found. The making of a suppression order now is not going to salvage what has already taken place. Nevertheless, children are in a very special position as far as the law is concerned and because these present proceedings arise out of the Local Court proceedings where there is an absolute ban under s 45 on anything which might identify the children, I consider that it is appropriate in the public interest to suppress any information which might identify the children in these proceedings. I note, however, that a proper determination of these present proceedings would not necessitate mentioning the children.
As far as the Plaintiff and his wife are concerned, it does not seem to me, however, that the Plaintiff discharges the onus which is upon him to show that public interest in all the circumstances justifies suppressing his or his wife's name (if her name is relevant) nor the subject matter of the proceedings and that public interest of doing so certainly does not outweigh the public interest in open justice.
Orders
I make the following orders:
1. Leave to the Plaintiff to file a further Amended Summons with respect to the name of the Plaintiff.
2. Orders as per Plaintiff's Amended SMO in the following terms:
Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (the Act):
(a) restrict the disclosure of information concerning the identification of the Plaintiff's three children;
(b) prohibit the publication of information identifying the Plaintiff's three children or any information concerning the evidence given in the Local Court proceedings that might tend to identify those persons; and
(c) prohibit the publication of the making of this application as far as the Plaintiff's children are concerned.
(3) In accordance with s 8 of the Act, the ground upon which the orders are made is that it is in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.
(4) In accordance with s 11 of the Act these orders apply throughout the Commonwealth.
(5) I make an interim order under s 10 of the Act in respect of the identity of the Plaintiff and his wife for a period of fourteen days or if any appeal is instituted in that time until the conclusion of the appeal subject to any order that the Court of Appeal itself may make.
These orders should be taken out forthwith.
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Decision last updated: 06 June 2013
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