Burton v Local Court of New South Wales

[2019] NSWSC 191

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Burton v Local Court of New South Wales [2019] NSWSC 191

Hearing dates:

22 February 2019

Date of orders:

08 March 2019

Decision date:

08 March 2019

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders that:

 

(1) The amended summons filed 27 August 2018 is dismissed.

 (2) Each party is to pay his/its own costs.

Catchwords:

ADMINISTRATIVE LAW – Judicial review – Court Suppression and Non-publication Orders Act 1970 (NSW) – Violation of non-publication orders - Whether the Magistrate erred by not dismissing the charges against the plaintiff – Failure to provide evidence – Abuse of process – Interim order – Whether the interim non-publication order could not have been violated because it was expired

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), s 105(2)
Civil Procedure Act 2005 (NSW), s 98
Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7(a), 7(b), 8(1), 10(1), 10(2), 12(1), 16(1)
Criminal Procedure Act 1986 (NSW), ss 61, 62, 183
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules, r 42.1

Cases Cited:

Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190
Cooley v Western Australia [2005] WASCA 160; (2005) 155 A Crim R 528
Cornwell v R [2010] NSWCCA 59
Connelly v DPP (1964) AC 1254
Craig v State of South Australia (1995) 184 CLR 163
Foukkare v Angreb Pty Ltd [2006] NSWCA 335
Grey v R [2001] HCA 65; (2001) 184 ALR 593; 75 ALJR 1708
Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; [2010] HCA 1
Mallard v R [2005] HCA 68; (2005) 224 CLR 125
Potier v R [2015] NSWCCA 130
R v Brown (Winston) [1998] AC 367
R v Keane [1994] 2 All ER 478 at 484; [1994] 1 WLR 746
R v Lipton [2011] NSWCCA 247; (2011) 82 NSWLR 123
R v Livingstone [2004] NSWCCA 407; (2004) 150 A Crim R 117
R v Reardon [2004] NSWCCA 197; (2004) 60 NSWLR 454
R v Spiteri [2004] NSWCCA 321; (2004) 61 NSWLR
Re Jayden [2007] NSWCA 35
Reichel v Magrath (1889) 14 App Cas 665
Rogers v R (1994) 181 CLR 251
State Bank of New South Wales Limited v Stenhouse Ltd (1997) Aus Torts Reports 81-423 (64,077) at 64,089
Walton v Gardiner (1993) 177 CLR 378

Category:

Principal judgment

Parties:

Paul Robert Burton (Plaintiff)
Local Court of New South Wales (First Defendant)
Director of Public Prosecutions (NSW) (Second Defendant

Representation:

Counsel:
W Anderson (Second Defendant)

  Solicitors:
Self Represented (Plaintiff)
Crown Solicitor – Submitting Appearance (First Defendant
Solicitor for Public Prosecutions (Second Defendant)

File Number(s):

2018/241275

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Local Court of NSW, Newcastle

Jurisdiction:

Criminal

Date of Decision:

06 July 2018

Before:

Stone LCM

File Number(s):

2017/387583

Judgment

1. HER HONOUR:

2. By amended summons filed 27 August 2018, the plaintiff seeks, firstly, an order in the nature of certiorari reviewing the decision of his Honour Stone LCM to dismiss the plaintiff’s notice of motion; secondly, an order in the nature of mandamus returning the matter to his Honour to be dealt with according to law.

3. The plaintiff is Paul Robert Burton. The first defendant is the Local Court of NSW, which has filed a submitting appearance. The second defendant is the Director of Public Prosecutions (NSW) (“the DPP”). The plaintiff relied upon his affidavit filed 11 February 2019 and his court book. The DPP relied upon the affidavit of Ryan James Thomas dated 7 February 2019.

4. The plaintiff appeared in person without legal representation. He was articulate and well prepared. Mr Anderson of counsel appeared for the second defendant.

5. The plaintiff seeks prerogative relief pursuant to s 69 of the Supreme Court Act 1970 (NSW). The plaintiff seeks to challenge the decision of a Local Court Magistrate who, on 6 July 2018, heard and dismissed a motion brought by the plaintiff concerning criminal proceedings taken against him.

Background

6. On 25 May 2017, the Children’s Court made an interim non-publication order pursuant to s 7(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW). On 31 May 2017, the Children’s Court made a second non-publication order pursuant to s 7(b) of the Court Suppression and Non-publication Orders Act.

7. Between 4 and 11 July 2017, the plaintiff allegedly published a number of posts and videos on Facebook, which allegedly contravened the two non-publication orders by naming the child who was the subject of the Children’s Court proceedings.

8. On 14 July 2017, the Crown Solicitor, acting on behalf of the Secretary of the Department of Family and Community Services, commenced injunction proceedings against the plaintiff in the Equity division of the Supreme Court (“the injunction proceedings”). On 18 July 2017, Rein J made orders in the injunction proceedings restraining the plaintiff from publishing certain information and requiring removal of that information from Facebook and other websites under the plaintiff’s control.

9. On 21 December 2017, the NSW Police Force charged the plaintiff with four alleged offences under s 105(2) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) and six alleged offences under s 16(1) of the Court Suppression and Non-publication Orders Act (“the prosecution proceedings”).

10. On 28 February 2018, the NSW Police Force served the plaintiff with a brief of evidence in relation to the prosecution proceedings. It outlined five documents that could be inspected, but were not produced in the brief.

11. On 6 April 2018, the plaintiff filed an amended notice of motion in the Local Court seeking that the Court Attendance Notice be quashed and the prosecution proceedings be dismissed. The amended notice of motion raised six grounds. They are:

“1) The Court Attendance Notice is void and invalid for violating Section 23 of the Criminal Procedure Act 1986.

2) The Court Attendance Notice is void and invalid for including both summary and indictable matters in the one document.

3) The Court Attendance Notice is void and invalid for being an abuse of process.

4) The failure of the Director of Public Prosecutions to give further and better particulars is a denial of natural justice.

5) The conduct complained of the subject of the charges is constitutionally protected political free speech.

6) The conduct complained of the subject of the charges is constitutionally protected exercise of religion.”

12. On 5 July 2018, the DPP served the plaintiff with unredacted versions of the transcripts of the Children’s Court proceedings on 25 May 2017, 31 May 2017, 9 June 2017 and 22 June 2017. On 6 July 2018, his Honour Magistrate Stone (‘the Magistrate”) heard the plaintiff’s amended notice of motion. During the course of argument, the plaintiff graciously conceded that the first ground of his amended notice of motion was unlikely to be successful, and made a similar concession in respect of the second ground. The Magistrate did not agree with the plaintiff’s submissions in respect of the remaining four grounds. His Honour dismissed the motion.

13. On 26 July 2018, the plaintiff commenced proceedings in this Court seeking judicial review of the decision of the Magistrate.

14. On 3 August 2018, Robb J made further orders in Equity in the injunction proceedings restraining the plaintiff from publishing certain information.

15. On 27 August 2018, the plaintiff filed an amended summons in relation to the judicial review proceedings.

16. On 7 February 2019, the DPP served the plaintiff with five further documents in relation to the prosecution proceedings.

17. The alleged offences under s 105(2) of the Children and Young Persons (Care and Protection) Act are indictable offences listed in Schedule 1, Table 1 of the Criminal Procedure Act 1986 (NSW). The alleged offences under s 16(1) of the Court Suppression and Non-publication Orders Act are summary offences.

Judicial review generally

18. In Craig v State of South Australia (1995) 184 CLR 163 at 179, the High Court stated that an administrative tribunal falls into error if it makes an error of law:

“…which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion…”

19. In Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190, McDougall J at [158] referred to Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; [2010] HCA 1:

“The majority pointed out (at [71]) that ‘[i]t is neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error’. However, by reference to the decision in Craig v South Australia (1995) 184 CLR 163 at 177-178, the majority identified three categories of jurisdictional error (at [72]):

(1) The mistaken denial or assertion of jurisdiction, or (in a case where jurisdiction does exist), misapprehension or disregard of the nature of or limits on functions and powers;

(2) Entertaining a matter or making a decision of a kind that lies, wholly or partly, outside the limits on functions and powers, as identified from the relevant statutory context;

(3) Proceeding in the absence of a jurisdictional fact; disregarding something that the relevant statute requires to be considered as a condition of jurisdiction, or considering something required to be ignored; and misconstruction of the statute leading to misconception of functions. (Of this last example, it was said in Craig at 178 that ‘the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern.’).”

20. Pursuant to s 69(3) of the Supreme Court Act, the jurisdiction of this Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal, if this Court is satisfied that the determination has been made on the basis of an error of law that appears on the face of the record of the proceedings. Further, s 69(4) of the Supreme Court Act provides:

“[f]or the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination.”

21. Prerogative relief under section 69 of the Supreme Court Act is a discretionary remedy. The second defendant submitted that in this case, there is no error of law on the face of the record and no jurisdictional error. The second defendant further submitted that there would be no utility in granting the relief sought by the plaintiff.

Grounds of judicial review

22. The plaintiff appeals from the whole of the decision of his Honour Magistrate Stone dated 6 July 2018 on the following grounds:

1. His Honour erred by finding that evidence that the DPP intends to use against the plaintiff in a criminal trial can be withheld by the DPP and that the plaintiff must subpoena it if he wants it, and for failing to dismiss or stay the charges on the grounds of denial of natural justice.

2. His honour erred by not dismissing the charges against the plaintiff or at the least staying them until the DPP provides a complete brief of evidence.

3. His Honour erred by failing to dismiss the charges on the grounds of abuse of process, as the plaintiff is facing criminal charges on the exact same matter for which he was summonsed to the Court of Equity and is being vexed twice for the same alleged behaviour.

4. His Honour erred by failing to dismiss the three charges relating to the 25 May 2017 suppression order which had expired, and which meant there was no possibility of a conviction on those charges.

23. While the plaintiff (Aff 27/8/2018 [28]) has complained that the core issues he raised in the amended notice of motion of abuse of process, denial of natural justice, constitutionally protected freedom of political free speech and constitutionally protected exercise of religion were largely ignored, the latter two were raised in the plaintiff’s application for judicial review.

Grounds 1 and 2 - Alleged failure to provide evidence

The plaintiff’s submissions

24. The plaintiff requested that DPP provide the evidence, and was told that they would see if it was covered by public interest immunity. This was after provision was refused on the grounds it was sensitive evidence, even though it was not.

25. The DPP actively argued in the Local Court that the plaintiff should not have the evidence and that they did not consider it relevant, even though the brief and fact sheet indicated that it was.

26. Since the notice of motion was heard in the Local Court, the plaintiff has been supplied with the five documents, although only recently on 7 February 2019. At the hearing, the plaintiff stated that as he now has copies of these documents, “In a sense, I concede grounds 1 and 2” (T 13-18). The plaintiff submitted that even if his application for judicial review fails, as he has only recently been supplied with the five documents that he had requested over 10 months ago, he should not be obliged to pay the costs incurred by these two grounds of judicial review. I shall return to consider this submission at the end of this judgment when I deal with the issue of costs.

The second defendant’s submissions

27. The second defendant acknowledged that those five documents had not been served upon the plaintiff at the time of the hearing of the amended notice of motion in the Local Court on 6 July 2018. The solicitor with carriage of the prosecution on behalf of the DPP had, at that time, formed the view that those five documents were not relevant to any fact in issue in the prosecution, and accordingly had not seen fit to serve them.

28. The evidence to be disclosed by the prosecution in committal proceedings for an indictable offence is prescribed by ss 61 and 62 of the Criminal Procedure Act 1986 (NSW). Section 61 provides that the accused person must be served with a brief of evidence, which under s 62 must contain:

“(a)   copies of all material obtained by the prosecution that forms the basis of the prosecution's case,

(b)   copies of any other material obtained by the prosecution that is reasonably capable of being relevant to the case for the accused person, and

(c)   copies of any other material obtained by the prosecution that would affect the strength of the prosecution’s case.”

29. In respect of summary offences, s 183 of the Criminal Procedure Act provides that the brief of evidence “is…to consist of documents regarding the evidence that the prosecutor intends to adduce in order to prove the commission of the offence, and is to include: (a) written statements taken from the persons the prosecutor intends to call to give evidence in proceedings for the offence, and (b) copies of any document or any other thing, identified in such a written statement as a proposed exhibit.”

30. The prosecution’s obligation to disclose is a continuing one.

31. In Potier v R [2015] NSWCCA 130, Ward JA, with whom Simpson and Wilson JJ agreed, summarised the principles in respect of the prosecution’s duty of disclosure, as follows:

“[549] The Crown’s duty to disclose is an incident of its duty of fairness to the accused. The test in R v Reardon [2004] NSWCCA 197; (2004) 60 NSWLR 454 correctly encapsulates in New South Wales the prosecution's duty of disclosure (see R v Spiteri [2004] NSWCCA 321; (2004) 61 NSWLR 369 at [20] and R v Livingstone [2004] NSWCCA 407; (2004) 150 A Crim R 117; at [44], [45]). That test (Hodgson JA adopting that in R v Keane [1994] 2 All ER 478 at 484; [1994] 1 WLR 746 at 752) is as follows in respect of the content of the duty of a prosecutor to disclose information (at [48]):

... the prosecution must disclose documents which are material ... documents are material if they can be seen, on a sensible appraisal by the prosecution, (a) to be relevant or possibly relevant to an issue in the case, (b) to raise or possibly raise a new issue the existence of which is not apparent from the prosecution case, or (c) to hold out a real (as opposed to a fanciful) prospect of providing a lead on evidence going to either (a) or (b). This view was approved by the House of Lords in R v Brown (Winston) [1998] AC 367 at 376-7, with the comment that ‘an issue in the case’ must be given a broad interpretation. Category (c) makes it clear that the duty is not limited to matters that would be admissible in evidence.

[550] Hodgson JA’s statement of relevant principles was approved in Cornwell v R [2010] NSWCCA 59 at [210] and R v Lipton [2011] NSWCCA 247; (2011) 82 NSWLR 123 at [77]. In R v Spiteri, Simpson J (Grove and Shaw JJ agreeing) said at [17]-[23]:

In Brown [1998] AC 367; [1997] 3 All ER 769 ...it was held that the prosecution duty of disclosure did not extend to disclosing material relevant only to the credibility of defence (as distinct from prosecution) witnesses. Even less, in my view, does the duty extend to disclosing material relevant only to the credibility of the accused person himself or herself; and even less does it extend to obliging the Crown to disclose material that would deter an accused person from giving false evidence or raising an issue of fact which might be shown to be false.

[551] Her Honour noted at [25] that the reference to material which might assist the defence has to be considered in the context of the trial under consideration and that the Crown cannot be expected to disclose material in its possession which might assist a defence of which it has no notice and cannot be expected to foresee.

[552] The prosecution’s duty to disclose is a continuing one (R v Glover (1987) 46 SASR 310; Cooley v Western Australia [2005] WASCA 160; (2005) 155 A Crim R 528 at [57]) and extends to disclosing material relevant to sentence proceedings (R v Lipton (2011) 82 NSWLR 123 at [82]).

[553] The consequences of non-compliance with the duty to disclose were considered in Grey v R [2001] HCA 65; (2001) 184 ALR 593; 75 ALJR 1708. There, the majority (Gleeson CJ, Gummow and Callinan JJ) held that where the Crown has not complied with its duty of disclosure, the question is whether the non-disclosure resulted in a miscarriage of justice. (See also Mallard v R [2005] HCA 68; (2005) 224 CLR 125).”

Conclusion

32. While the prosecution’s duty of disclosure does not extend to material which the prosecution does not consider to be relevant or possibly relevant to any issue in the case (see Potier at [549]), its obligation is a continuing one. The solicitor with the carriage of the prosecution at the time had formed the view that those five documents were not relevant to any fact in issue in the prosecution, and therefore did not serve the documents upon the plaintiff. There then followed a change of approach. No reasons were given for that change. The prosecution has now disclosed those documents. The plaintiff now has them, and was correct to concede grounds 1 and 2, as there is no utility in making the orders sought pursuant to them.

Ground 3 - Alleged abuse of process

33. In Re Jayden [2007] NSWCA 35, Ipp JA (with whom Beazley and Hodgson JJA agreed), referred at [80] to the following part of McHugh J’s dissenting judgment in Rogers v R (1994) 181 CLR 251 (“Rogers”):

“[80] In Rogers v R (1994) 181 CLR 251 McHugh J said (at 286):

Inherent in every court of justice is the power to prevent its procedures being abused. Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories:

(1) the Court’s procedures are invoked for an illegitimate purpose;

(2) the use of the Court’s procedures is unjustifiably oppressive to one of the parties; or

(3) the use of the Court’s procedures would bring the administration of justice into disrepute.

[81] McHugh J was in dissent in this case but nothing said by the majority is inconsistent with his Honour's remarks that I have quoted.

[82] It is well settled that an abuse of process may arise where ‘processes and procedures of the Court, which exist to administer justice with fairness and impartiality, [are] converted into instruments of injustice or unfairness’: see Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ. See also State Bank of New South Wales Limited v Stenhouse Ltd (1997) Aus Torts Reports 81-423 (64,077) at 64,089 per Giles CJ at Comm D (as he then was), where his Honour said:

The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice ...

See also Foukkare v Angreb Pty Ltd [2006] NSWCA 335 at [60] to [61] per Beazley JA.”

34. In Walton v Gardiner (1993) 112 ALR 289 (“Gardiner”) at 298, Mason CJ, Deane and Dawson JJ gives as an example of an abuse of process a case where, even though the circumstances do not give rise to an estoppel, the proceedings seek to litigate an issue which has already been disposed of by earlier proceedings, and are therefore unjustifiably vexatious and oppressive: see also Reichel v Magrath (1889) 14 App Cas 665 at 668; Connelly v DPP (1964) AC 1254 at 1361-1362.

The plaintiff’s submissions

35. The plaintiff contends that the injunction proceedings, together with the criminal prosecution being conducted by the DPP in the Local Court, have resulted in him being “vexed twice for the exact same alleged behaviour”. He submitted that the prosecution proceedings and the injunction proceedings make identical allegations. He says that as a result he is in a state of “legal Limbo”, and that this is an abuse of process.

The second defendant’s submissions

36. The second defendant submitted that the proceedings in the Equity division of the Supreme Court are distinct from the criminal proceedings against the plaintiff. Those two sets of proceedings do not together constitute an abuse of process.

37. The defendant further submitted that the plaintiff’s submissions in this regard are, with respect, misconceived. As was observed by the Local Court Magistrate, these are two different sets of proceedings. The injunction proceedings are clearly civil in nature, unlike the prosecution proceedings, and the relief sought in the injunction proceedings is not relief of a kind which would “penalise” the plaintiff as he has asserted. Further, the prosecution proceedings relate to conduct allegedly committed in contravention of existing orders and an existing statutory prohibition, whereas the injunction proceedings relate to preventing future conduct on the part of the plaintiff.

38. The second defendant has supplemented that material with further documents from the injunction proceedings, specifically, an amended summons dated 13 October 2017, a further amended summons dated 28 November 2017, and orders made on 3 August 2018. These documents illustrate that these proceedings are distinct from the criminal prosecution. The past conduct of the plaintiff is relevant to the injunction proceedings, but does not expose the plaintiff to double punishment for the same conduct in the Local Court.

39. On 13 November 2018, Robb J stood the equity proceedings over to 26 February 2019 (Ex B) for reasons he explained as follows:

“So that brings me to the point that the status of these proceedings is really quite unusual because the parties on both sides would have a right to make submissions to the Court on what the final orders should be but that has not yet happened insofar as the Court is now engaged on an exercise, for want of a better expression, it is an interlocutory step within an interlocutory step.

Now, I need to add that, as I understand it, because the defendants in this case have apparently been charged with offences against s 105 of the [Children and Young Persons (Care and Protection) Act], I think it was the last occasion the matter was before the Court, the Secretary indicated that pending some appropriate determination of the criminal proceedings, it would not be appropriate for the civil proceedings to continue and that for that reason they should be and they were effectively adjourned. And just to add an explanation there, particularly in the context where the defendants in this case are self represented, there is a chance that if this case was to proceed to final submissions, the defendants could inadvertently make statements that were detrimental to their position in the criminal proceedings. So for the civil proceedings to continue in parallel with the criminal proceedings, that would put the defendants at some jeopardy.

The simple point is that they could say things in this Court, thinking it was in their interests to do so, which may then be used for instance as an admission in the criminal proceedings against them, and because it is a relatively fundamental aspect of our law that persons are not required to incriminate themselves, there is an inhibition about running criminal cases and civil cases on overlapping facts at the one time. Essentially it inhibits the ability of the defendant in the civil case to speak openly without risking their position in the criminal case.”

Conclusion

40. The criminal proceedings are a legitimate process of the court. The Magistrate stated that the injunction proceedings and the criminal proceedings were two different sets of proceedings.

41. Robb J made clear that the injunction proceedings will not proceed while the related criminal matters are being heard, and set out in his reasons the rationale for avoiding such a procedural overlap. The Equity civil proceedings, concerning the same subject matter as the criminal proceedings, have not and will not proceed to a final hearing while the criminal proceedings have not been concluded.

42. In my view, there is no abuse of process. The Magistrate was correct in having both the criminal and civil proceedings on foot at the same time. The criminal proceedings deal with past events, while the civil proceedings concern future events. This ground of judicial review is dismissed.

Ground 4 - Alleged expiry of the non-publication order made on 25 May 2017

43. The plaintiff submitted that the non-publication order made on 25 May 2017 was not an interim order, and that its designation as ‘interim’ was “merely an error on the part of the Court officer when typing up the order”. He says that are only three possible scenarios in relation to that order, but that even with all three scenarios there can only be one conclusion, which is that the DPP can never prove the order was in force at the time he is alleged to have breached it, and that the charges in respect of that order are all doomed to fail: see Gardiner at 298.

The three scenarios

Scenario 1

44. The plaintiff says that the order made on 25 May 2017 was an interim order, and expired on 31 May 2017 for the following reasons:

“[Section 10(2)] of the [Court Suppression and Non-publication Orders Act] states that if an interim order is made a final order must be made as a matter of urgency. Assuming that her Honour followed the Act of Parliament then it is clear that since there have been no orders made since May 31st 2017 then her Honour must have intended the order of May 31st to be the final order.

Evidence of this exists in Her Honour’s own words where she is recorded in the transcript of May 25th at page 5 saying “we’re a Court of statutory construct”. Clearly here her Honour is acknowledging she is bound by the Statute she is applying.

Therefore if it is assumed her Honour was aware of the Statute and the need to make a final order as a matter of urgency, if she made an interim order then the only logical conclusion is that if the May 25th order is an interim order then her Honour made the order on May 31st as a final order. The DPP has offered no evidence that her Honour wasn't aware of the Statute or indeed never intended to follow it. They have also offered no evidence that the Secretary intended the orders of May 25th to be included in the final order of May 31st. They have offered no evidence that the Secretary intended to pursue the orders of May 25th.

Therefore if the Court is prepared to conclude that her Honour was aware of the terms of the Act she was applying and prepared to accept that she was prepared to obey and follow the statute she was applying, then it is a clear conclusion that the order of May 25th if it was an interim order expired on May 31st 2017.”

Scenario 2

45. The plaintiff says that the order made on 25 May was an interim order, and did not expire on 31 May 2017 for the follows reasons:

“This scenario is what the DPP would urge your Honour to adopt. However this scenario is against the evidence and accepting it is fraught with danger. If the order of May 25th is an interim order unrelated to the order of May 31st then the only logical conclusions that can be drawn are,

1) Her Honour Magistrate Skinner was not aware of the terms of the Statute in regards to making interim orders, or

2) Her Honour Magistrate Skinner was aware of the Statute in regards to interim orders and simply chose to ignore it.

The DPP urge you to make this finding.

Section [10(2)] of the [Court Suppression and Non-publication Orders Act] states,

(2) If an order is made as an interim order, the court must determine the application as a matter of urgency.

There were no other orders made after May 31st. Therefore if her Honour made the May 25th order as an interim order then clearly she has not followed the Statute and therefore one of the conclusions outlined in 1) and 2) above must be drawn.”

Scenario 3

46. The plaintiff says that the order made on 25 May 2017 was a final order because:

“Evidence exists to show that her Honour never intended the order of May 25th to be an interim order. The DPP has referred to [s 10(1)] of the [Court Suppression and Non-publication Orders Act] to build their case.

[Section 10(1)] states,

(1) If an application is made to a court for a suppression order or non-publication order, the court may, without determining the merits of the application, make the order as an interim order to have effect, subject to revocation by the court, until the application is determined.

The question then is did her Honour make the order without determining the merits of the application?

The answer to that is clearly no, for the following reasons. Her Honour's discussions of it take up around 5 pages of transcript. Further to this she had discussions with the Barrister for FACS while the other party was out of the room and which is not in the transcript, and further again she read an affidavit of Nicole Collins in support of the order and a statement that was prepared for the Court. In fact and truth the Magistrate determined the merits of the application quite clearly.

Further to that at no point does her Honour or the Barrister for FACS refer to the order as an "interim order". The barrister referred to the “minutes of order” as did the Magistrate on a number of occasions.

However there was parental responsibility orders made at the same time and both her Honour and the barrister referred to them a number of times as “interim”. It seems strange that they would refer to those orders as “interim” a number of times and never refer to the suppression order as "interim" once if they intended it to be interim?

There is additional evidence to show that the suppression order was not an “interim” order. That is that the order of May 31st was referred to by the barrister for FACS as a “subsequent or further order.”

The reason her Honour never made any orders after May 31st is because the order of May 25th was a final order and the obvious conclusion is that the word “interim” only appeared in the typed minutes because of an error by court staff. I have caused enquiries to be made at Broadmeadow Children's Court in regards to the making of suppression orders and the writing up of a copy if a copy is requested. The answer given by Broadmeadow Children's Court was that the orders made by the Magistrate are oral. If a copy is required or requested of those orders, it is then completed by the Registrar. In the current case the copy of the order is signed by the Registrar.

The copy of the order is the only place that the word INTERIM is found in relation to the order. It is not found in the oral orders of her Honour. It is not found in the submissions of the Barrister for FACS. It is not found in the reasoning of her Honour.

It is clear that this was never intended to be an interim order and the fact that the copy of the orders tendered in the brief of evidence is marked “interim” is based solely upon what is an error of the Registrar.”

The plaintiff’s submissions

47. The plaintiff submitted that if the order made on 25 May 2017 expired on 31 May 2017, then the charges in relation to the 25 May 2017 order must fail. If the order of 25 May 2017 is an interim order and did not expire on 31 May 2017 then it was made outside jurisdiction as no other order was made or was intended to be made contrary to the Act of Parliament. It is therefore invalid and the charges must fail. If the order of 25 May 2017 was a final order, which is what the evidence suggests, then it fails for want of a time duration and as such the DPP can never prove it was in force at the time of the alleged breach. It is clear that the Magistrate and barrister never mentioned the word "interim". It is clear she “determined” this issue, which invalidates the DPP’s argument and reliance on s 10(1) of the Court Suppression and Non-publication Orders Act.

48. The plaintiff also submitted that it is clear that no other orders were made in relation to the same content of the 25 May 2017 orders. It is clear that the orders of 31 May 2017 were always referred to as “further” orders.

49. The plaintiff further submitted that to hold him to account based on a copy of an order made by a Registrar, when the weight of all the evidence shows that the Registrar made an error in writing up the copy of the order, would amount to a denial of justice and oppression.

50. The plaintiff says that it is crystal clear even to the most obtuse person that the suppression order of 25 May 2017 was a final order, and therefore the charges based upon them are doomed to fail and are, as a matter of law, an abuse of process.

The second defendant’s submissions

51. The second defendant submitted that as the interim non-publication order made by the Children’s Court of New South Wales on 25 May 2017 was in force on the dates of the plaintiff’s alleged offences, there is a prospect of conviction in respect of the three charges which allege that the plaintiff contravened that order.

52. Three of the charges against the plaintiff involve alleged breaches of the first non-publication order made by the Children’s Court on 25 May 2017. The sealed copy of this order identifies it as an "interim order". It is also identified as being an order made under s 7(a) of the Court Suppression and Non-publication Orders Act, which is an order prohibiting the publication of information tending to identify certain persons connected with the proceedings.

53. In light of s 10(1) of the Court Suppression and Non-publication Orders Act, the interim order made on 25 May 2017 had effect until the final determination of the relevant application. The interim order was not expressed to expire at any particular time. There was no revocation of that order by the Children’s Court identified by the plaintiff.

54. The plaintiff contends that the three charges involving alleged breaches of the interim order are doomed to fail because the interim order had expired at the time his publications were allegedly made. The plaintiff's argument implicitly assumes that the interim order expired on 31 May 2017, on the date a second non-publication order was made by the Children’s Court.

55. However, the interim order did not expire on 31 May 2017 because:

1. There is nothing in the terms of the second non-publication order made on 31 May 2017, nor in the Children’s Court transcripts for 31 May, 9 June or 22 June 2017, to indicate that any final determination had been made in respect of the interim order.

2. The second non-publication order addressed different subject matter than the interim order, and was made under a different provision, namely section 7(b) of the Court Suppression and Non-publication Orders Act.

3. The application for the second non-publication order was described by counsel for FACS as “a further application in relation to a subsequent or a second application for a non-publication order”.

56. The interim non-publication order made on 25 May 2017 did not expire and remained effective at the time of the plaintiff's alleged offences, despite the assumption of the plaintiff to the contrary.

Conclusion

57. The plaintiff correctly identified that this interim non-publication order did not include a time duration, as may be specified under s 12(1) of the Court Suppression and Non-publication Orders Act:

“12 Duration of orders

(1) A suppression order or non-publication order operates for the period decided by the court and specified in the order.”

58. In oral submissions, the plaintiff referred to s 10(1) and (2) of that Act:

“10 Interim orders

(1) If an application is made to a court for a suppression order or non-publication order, the court may, without determining the merits of the application, make the order as an interim order to have effect, subject to revocation by the court, until the application is determined.

(2) If an order is made as an interim order, the court must determine the application as a matter of urgency.”

59. The non-publication order dated 25 May 2017 states:

“The Children’s Court orders as follows:

INTERIM ORDER

1. Pursuant to Section 7(1)(a) of the Court Suppression and Non-publication Orders Act 2010 and relying on the grounds outlined in subsections 8(1)(c) and 8(1)(e) of the Act: there must be no publication of information that would identify or tend to identify individuals within the following groups of persons connected with proceedings, except for the purpose of the proper conduct of the proceedings:

a. Any caseworker or Manager Caseworker employed by the New South Wales Department of Family and Community Services involved in the provision of casework in relation to the child XXXX;

b. Dr XXXX, Dr XXXX, Dr XXXX and other senior treating medical paediatric and child protection team staff at XXXX Hospital, employed by the New South Wales Department of Health involved in the provision of medical treatment of the child XXXX;

c. Any legal representative for the Secretary Family and Community Service or legal representative for the child, appearing in these proceedings.”

60. On the face of the Court order, it is an interim order. By virtue of s 10(1) of the Court Suppression and Non-publication Orders Act, the interim order is to have effect subject to revocation of the Court, until the application is determined. Although s 10(2) states that if the order made is an interim order the Court must determine the application as a matter of urgency, the order cannot come into play until the plaintiff’s criminal charges are determined. The Magistrate’s reasons were correct. This ground of judicial review fails.

Disposition

61. The result is that the plaintiff’s application for judicial review fails. The summons filed 27 August 2018 is dismissed.

Costs

62. Costs are discretionary.

63. The starting point for an award of costs is s 98 of the Civil Procedure Act 2005 (NSW). It relevantly reads:

“98 Courts powers as to costs

(cf Act No 52 1970, section 76; SCR Part 52A, rules 5, 6, 7 and 8; Act No 9 1973, section 148B; Act No 11 1970, section 34)

(1) Subject to rules of court and to this or any other Act:

(a) costs are in the discretion of the court, and

(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

(2) Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court.”

64. Rule 42.1 of the Uniform Civil Procedure Rule 2005 (NSW) reads:

“42.1 General rule that costs follow the event

(cf SCR Part 52A, rule 11)

Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.”

65. So far as grounds 1 and 2 of the judicial review are concerned, the plaintiff should not be obliged to pay costs for these two grounds of judicial review, because no reason was given for the change of approach in providing the five documents. However, the plaintiff did not succeed in relation to judicial review grounds 3 and 4. In these circumstances and in the exercise of my discretion, the appropriate order for costs is that each party should pay their own.

The Court orders that:

(1)   The amended summons filed 27 August 2018 is dismissed.

(2)   Each party is to pay his/its own costs.

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Amendments

11 March 2019 - Typographical error para [2] - amended year from 2019 to 2018

Decision last updated: 11 March 2019