Batt-Rawden v CXD4 - [2024] NSWSC 1247

Supreme Court

New South Wales

Medium Neutral Citation: Batt-Rawden v CXD4 [2024] NSWSC 1247
Hearing dates: 18 September 2024
Date of orders: 18 September 2024
Decision date: 18 September 2024
Jurisdiction: Common Law
Before: Garling J
Decision:
See [23]

Catchwords:
CIVIL PROCEDURE – Suppression and non-publication orders – Application by the defendant for suppression orders and pseudonym orders – Where the cause of action arises out of conduct which was the subject of criminal proceedings – Where the criminal proceedings were dealt with on the basis that the victim and the defendant were under the age of 18 and fell within the definition of a child within the meaning of the Children (Criminal Proceedings) Act 1987 – Whether the suppression orders and pseudonym orders are necessary for the interests of justice – Application granted.
MEDIA AND COMMUNICATIONS – Publication – Court Suppression and Non-Publications Orders Act – Where publicity concerning the criminal proceedings may have identified the defendant – Whether the suppression orders and pseudonym orders are necessary for the interests of justice – Application granted.

Legislation Cited:
Court Suppression and Non-Publications Orders Act 2010
Limitation Act 1969
Children (Criminal Proceedings) Act 1987

Cases Cited:
Rinehart v Welker [2011] NSWCA 403

Texts Cited:
Not Applicable

Category: Principal judgment
Parties: Andrew Batt-Rawden (P)
CXD4 (D)
Representation:
Counsel:
M Keaney (P)
J Downing SC (D)
Solicitors:
G J Gooden (P)
Uther Webster & Evans Lawyers (D)

File Number(s): 2024/302876
Publication restriction: Not Applicable

EX TEMPORE JUDGMENT

This is an application by the defendant, by way of a Notice of Motion for an order pursuant to s 7 of the Court Suppression and Non-Publications Orders Act 2010 ("the Suppression Act"), to prohibit the publication or disclosure of the name and any other information or visual images tending to reveal the identity of, or otherwise concerning, the defendant in the proceedings or any person who is related to or living with the defendant, including his spouse and children. As well, an order is sought that a pseudonym be substituted for the name of the defendant and used in these proceedings.
The plaintiff opposes the order, submitting that the defendant has not discharged the onus of persuading the Court that it is necessary for any suppression order to be made, and that the defendant has not discharged his burden of demonstrating that the primary objective of the administration of justice, which is to safeguard the public interest in open justice, would be maintained if such an order was made.

Present Claims

The claim by the plaintiff is for compensatory damages including aggravated damages arising out of conduct which occurred between 1992 and 1996 at his family home, which conduct is alleged to constitute sexual abuse as that term is used in s 6A of the Limitation Act 1969. Unless the conduct falls within the definition of sexual abuse in that legislation, then the claim being made by the plaintiff could not proceed because of the fact that it was not commenced until after the…

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 Batt-Rawden v CXD4

Details

AGLC: Batt-Rawden v CXD4 [2024] NSWSC 1247
Case: [2024] NSWSC 1247
Decision Date: 18 September 2024

CaseChat Overview and Summary

In the case of Batt-Rawden v CXD4, the dispute centred around the granting of suppression and non-publication orders by the court. The defendant sought these orders in the context of a civil action that arose from conduct which had previously been the subject of criminal proceedings. Notably, the criminal proceedings were conducted under the assumption that both the victim and the defendant were under 18 years of age, thereby falling within the definition of a child as per the Children (Criminal Proceedings) Act 1987.

The legal issues before the court involved determining whether suppression orders and pseudonym orders were necessary for the interests of justice. The court had to consider the potential for ongoing publicity concerning the criminal proceedings to identify the defendant, and whether such identification could prejudice any future legal proceedings. The application for these orders was also influenced by the fact that the original criminal proceedings were handled with the understanding that both parties were minors.

The court found that the suppression and pseudonym orders were indeed necessary to protect the interests of justice. It concluded that the publicity surrounding the criminal proceedings had the potential to identify the defendant, which could prejudice any subsequent legal proceedings. Given these considerations, the court granted the defendant's application for the suppression and non-publication orders. These orders were deemed necessary to safeguard the defendant's right to a fair trial and to prevent any undue influence on potential jurors or witnesses.

Orders