Council of Law Society of NSW v Xx

[2020] NSWSC 1912

Supreme Court

New South Wales

Medium Neutral Citation:

Council of Law Society of NSW v XX [2020] NSWSC 1912

Hearing dates:

16 December 2020

Date of orders:

16 December 2020

Decision date:

16 December 2020

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) Pursuant to s 10 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), ("the Act"), the orders made by Justice Bellew on 12 December 2019, pursuant to the Act, are extended until 5pm on 16 March 2021 or until further order of the Court, whichever is the earlier.

(2)   The motion is listed for directions before the Registrar at 9am on Friday, 18 December 2020 to the intent that the first available suitable date for a hearing, in or after the second week of February, may be fixed.

(3)   The defendant to serve any evidence to be relied upon in support of the motion by no later than five business days prior to the hearing.

Catchwords:

CIVIL PROCEDURE – suppression and non-publication – orders – interim order sought – question of when a hearing in respect to the continuation of the order will be heard – where by operation of the Act a hearing is a matter of urgency – orders made for urgent hearing of the application

Legislation Cited:

Court Suppression and Non-Publication Orders Act2010 (NSW) ss 7,8, 10

Cases Cited:

Not applicable

Texts Cited:

Not applicable

Category:

Procedural and other rulings

Parties:

Council of the Law Society of New South Wales (Plaintiff)
XX (Defendant)

Representation:

Counsel:
B.J. Tronson (Plaintiff)
P.D. Lange (Defendant)
Solicitors:
The Law Society of New South Wales (Plaintiff)
Hanna Legal (Defendant)

File Number(s):

2019/180938

Publication restriction:

Identity of defendant

Extempore judgment revised

1. Very detailed non-publication orders were made in this matter by Bellew J on 12 December 2019. The case concerns a solicitor who has, to put no fine point on it, defrauded his clients.

2. The basis of Bellew J's order under s 7 of the Court Suppression and Non-Publication Orders Act2010 (NSW) was the ground specified in s 8(1)(c), that the order was necessary to protect the safety of a person. The person involved is the defendant, and his Honour was persuaded that that matter outweighed the public interest in open justice, by reference to a considerable body of psychiatric evidence that he found persuasive. This was to the effect that, given the state of the defendant's mental health, he was at a very much heightened risk compared to the general population of suicide, if the shame that goes with publicity of his misconduct came to pass.

3. His Honour made the order for a period of 12 months, which expired on 12 December 2020. On Friday, on the application of the parties, his Honour extended the order until 5pm today on an interim basis. It is now 4:20 pm, and I have been considering an application for a further interim extension of the orders made on 12 December 2019 under s 10 of the legislation since 3 45 pm.

4. Mr Lange of counsel for the defendant, who is the applicant on the motion, and Ms Tronson of counsel for the plaintiff, who is the respondent on the motion, are able to agree that it is appropriate, given the time of year, and another circumstance to which I will refer in a moment, to make an interim order. What they cannot agree upon is what should happen then. And the difference between them about that really relates to practicalities concerning when realistically the matter can be heard in the new year.

5. The fact to which I made mention of is that the proceedings on sentence, as the defendant has pleaded guilty to the charges in relation to the matters I have referred to very generally, are listed for hearing tomorrow in the District Court at the Downing Centre. Again, given the time of year, it is difficult to know whether the matter will get on. It is not yet apparently allocated to a specific judge for hearing, and Mr Lange informs me that it is his understanding there are a number of matters for sentence tomorrow. He acknowledges that, as his client is in custody bail refused, he ought to have some priority.

6. But even if the proceedings conclude tomorrow, there is the possibility that the applicant will not be sentenced until the new year, if the judge decides to take time for consideration. This is possible because, from what I have seen of the affidavit of Nicholas Hanna, affirmed on 4 December 2020, there is some complexity to the plea, having regard to, as I have said, the defendant's psychiatric condition.

7. My basic difficulty in the case is the provision of s 10(2) properly brought to my attention by Ms Tronson. Section 10(1) empowers the Court to make an interim order under the Act without determining the merits of the application. However, subs (2) of the same provision provides that, if an interim order is made, "the Court must determine the application as a matter of urgency".

8. This is extremely emphatic language. I am prepared to accept that the concept of urgency, like all English words, may have protean qualities to it, especially given the imminent long vacation. But the intention of the legislature is quite clear. And the intention of the legislature is based upon a paramount consideration - my language, not the language of the Act – that a primary objective of the administration of justice is to safeguard the public interest in open justice.

9. The open justice principle is a principle which safeguards the liberty of all of us. I appreciate that, in the case of a given individual who is to be dealt with by the criminal courts, publicity may be most unwelcome, and publicity may add to the burden of being sentenced. Those features may have particular significance in the case of a person who suffers from a recognised psychiatric condition as apparently the defendant does.

10. But despite the flexibility of the concept of urgency, which I am prepared to admit of, the matter really needs to be brought on for hearing, sooner rather than later, at least so far as that is within my power to affect. Otherwise there is a risk that the section 10 power, which is clearly conferred on the Court for temporary purposes, might be abused. Notwithstanding the great persuasion of Mr Lange's submissions and what he points out about the difficulty of updating the psychiatric evidence after the defendant is sentenced, in the expectation that the passing of sentence will have some effect, one way or the other, upon his mental state, I am of the view that the matter really needs to be brought on more quickly than the first week in March, if the Court is in a position to allocate a date.

11. In that regard, doing the best they can at the moment, counsel seem to agree that hearing of the substantive issue ought not take more than an hour or two, always allowing for a degree of complexity which might require the judge to reserve. However, as was pointed out in argument, if the judge needs to reserve, a further interim order can always be made.

12. It seems to me that the way ahead is to adopt, in general terms, what has been proposed by the Law Society. I am rather of the view that the matter should be listed before the Registrar on Friday. At least then the parties will have an idea as to when sentence will be passed and arrangements can be made to obtain supplementary evidence about the effect that might have on the mental state of the defendant, at least by way of prognosis. The requirements of justice often demand that experts conjure with future probabilities rather than past certainties.

13. The orders I will make are as follows:

1. Pursuant to s 10 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), ("the Act"), the orders made by Justice Bellew on 12 December 2019, pursuant to the Act, are extended until 5pm on 16 March 2021 or until further order of the Court, whichever is the earlier.

2. The motion is listed for directions before the Registrar at 9am on Friday, 18 December 2020 to the intent that the first available suitable date for a hearing, in or after the second week of February, may be fixed.

3. The defendant to serve any evidence to be relied upon in support of the motion by no later than five business days prior to the hearing.

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Decision last updated: 23 December 2020