Council of the Law Society of New South Wales v XX (No 4) - [2021] NSWSC 192

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Council of the Law Society of New South Wales v XX (No 4) [2021] NSWSC 192
Hearing dates: 24 February 2021
Date of orders: 26 March 2021
Decision date: 08 March 2021
Jurisdiction: Common Law
Before: Davies J
Decision:
1. Pursuant to s 7(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) (Suppression Act), on the basis of the ground in s 8(1)(c) of the Suppression Act, the publication of information tending to reveal the identity of the Defendant in a manner which identifies the Defendant as the person who is alleged to have engaged in the conduct, the subject of these proceedings, is prohibited.
2. The defendant be referred to by the pseudonym (XX) in the Court, including but not limited to in the following judgments and orders:
a.   orders dated 11 June 2019;
b.   orders dated 14 June 2019;
c. the judgment of Lonergan J dated 11 July 2019: [2019] NSWSC 874;
d.   orders dated 20 August 2019;
e. the judgment of Bellew J dated 20 August 2019: [2019] NSWSC 1079;
f. the judgment of Bellew J dated 21 November 2019: [2019] NSWSC 1630;
g.   orders dated 12 December 2019 made by Bellew J; and
h.   any order and/or judgment made in this proceeding.
3. The Defendant’s family members, where referred to as such, location, and name of the Defendant’s former practices be referred to by a pseudonym in the above judgments.
4. Pursuant to s 11 of the Suppression Act, Orders 1 to 3 apply throughout the Commonwealth.
5. Orders 1 to 4 inclusive apply until the expiration of 18 months after the defendant’s release to parole from his current custodial sentence in District Court proceedings 2019/00048381 and 2019/00363260.
Exceptions to orders 1, 2 and 3
6. Orders 1 to 3 inclusive do not prevent the publication (or, for the avoidance of doubt, the disclosure) of any information to any Court or Tribunal.
7. Orders 1 to 3 inclusive do not prevent any Court or Tribunal from making an order that information, whether or not it tends to reveal the identity of the Defendant, may be published (or, for the avoidance of doubt, disclosed).
8. Orders 1 to 3 inclusive do not prevent the publication (or, for the avoidance of doubt, the disclosure) of information to the New South Wales Police, or to the Australian Federal Police.
9.   Orders 1 to 3 inclusive do not prevent the publication (or, for the avoidance of doubt, the disclosure) of information for any one or more of the following purposes:
a.   carrying out, enforcing or overseeing Orders 3 to 8 inclusive of the orders made by the Court in these proceedings on 20 August 2019;
b.   investigating, handling and/or otherwise dealing with matters, allegations, claims or complaints involving the Defendant or any law practice, legal practitioner or former legal practitioner with which he has been associated, including but not limited to claims on the Fidelity Fund;
c.   seeking legal advice in relation to the Defendant and/or matters, allegations, claims or complaints against or involving the Defendant or any law practice, legal practitioner or former legal practitioner with which he has been associated, including but not limited to claims on the Fidelity Fund;
d.   instituting and/or carrying on legal proceedings against or involving the Defendant in any Court or Tribunal;
e.   the exercise of the receiver’s functions in relation to the law practice known as XXX Pty Ltd (trading as YY) and/or the law practice known as ZZZ Pty Ltd (trading as ZZ), whether by the receiver (whether present or his successor), or by any delegate, associate, employee or legal representative of the receiver; and/or
f.   the exercise of the manager’s functions in relation to YY and/or ZZ, whether by the manager (whether present or his successor), or by any delegate, associate, employee or legal representative of the manager.
10. Orders 1 to 3 inclusive do not prohibit the publication (or, for the avoidance of doubt, the disclosure) of:
a.   information about the suspension, or status, of the Defendant’s practising certificate;
b.   information concerning claims which may be made against the Fidelity Fund in relation to the Defendant, YY or ZZ, or any other law practice with which the Defendant has been associated including but not limited to information inviting any person who considers they have a claim to make one; and/or
c.   information concerning the receivership and/or management of YY and/or ZZ, including but not limited to information concerning the appointment of any receiver and/or manager to YY and/or ZZ,
whether such publication or disclosure is, or has been, made before or after the making of these orders.
11. Orders 1 to 3 inclusive do not prohibit the publication (or, for the avoidance of doubt, the disclosure) of any information:
a.   to any client, former client or purported client of the Defendant, YY, ZZ or any other law practice, legal practitioner or former legal practitioner with which the Defendant has been associated or has purportedly been associated for the purposes of providing such client, former client or purported client with information reasonably necessary to permit them to take steps to protect their rights and/or interests; or
b.   by any such client, former client or purported client for the purposes of taking such steps as are reasonably necessary to protect their rights and/or interests, including but not limited to seeking legal or other professional advice and/or commencing proceedings (whether against the Defendant or not), or to assist with any investigation or proceeding concerning the Defendant,
whether such publication or disclosure is, or has been, made before or after the making of these orders.
12. Except as otherwise specified in these orders, Orders 1 to 3 inclusive do not apply to publications which came into existence prior to the date of the orders made by Bellew J on 12 December 2019.
13. By consent, the parties agree that Orders 1 to 3 inclusive do not prevent the redacted or pseudonymised judgments and orders in the proceeding from being published or disclosed.
Costs
14. In relation to the Defendant’s notice of motion dated 16 December 2020, each party to bear its own costs.
Other orders
15. The order made by Bellew J on 21 November 2019 that the reasons for judgment (Council of the Law Society of NSW v XX (No 3) [2019] NSWSC 1630) be supressed is vacated.

Catchwords:
CIVIL PROCEDURE – suppression and non-publication – orders – earlier orders made and due to expire - further orders sought on the basis of defendant’s psychiatric illness – s 8(1)(c) Court Suppression and Non-publication Orders Act - solicitor who defrauded clients of money – where solicitor was convicted of five counts contrary to s 192E Crimes Act 1900 (NSW) and imprisoned – where media articles published without naming solicitor because of earlier orders – where solicitor suffers from Bipolar I Disorder – where risk of self-harm - where orders are necessary to protect defendant’s safety – length of orders – whether orders are reasonably necessary to operate until the end of defendant’s sentence – where media interest in case following defendant’s release from custody likely to be minimal – orders made until 18 months following defendant’s release from custody on parole

Legislation Cited:
Court Suppression and Non-publication Orders Act 2010 (NSW) ss 6, 7, 8, 12
Crimes Act 1900 (NSW) s 192E
Legal Profession Uniform Law (NSW) No 16a of 2014 ss 341, 447
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
AB (A Pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46
Council of the Law Society of NSW (No 2) [2019] NSWSC 1079
Council of the Law Society of New South Wales v Cassidy [2018] NSWSC 2008
Council of the Law Society of New South Wales v XX [2019] NSWSC 874
Council of the Law Society of NSW v XX [2020] NSWSC 1912
Council of the Law Society of NSW v XX (No 3) [2019] NSWSC 1630
Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125
R v XX [2020] NSWDC 771
Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403

Texts Cited:
Nil

Category: Procedural rulings
Parties: Council of the Law Society of New South Wales (Plaintiff)
XX (Defendant)
Representation:
Counsel:
C Hamilton-Jewell (Plaintiff)
P Lange & T Woods (Defendant)
Solicitors:
Law Society of New South Wales (Plaintiff)
Hanna Legal (Defendant)

File Number(s): 2019/180938
Publication restriction: Non-publication of information tending to reveal the identity of the Defendant pursuant to s 7(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) (Suppression Act) on the basis of the ground in s 8(1)(c ) of the Suppression Act.

Judgment

The defendant was admitted as a lawyer of this Court on 13 February 2009, and thereafter practised with a number of firms. In December 2018 the Law Society of New South Wales undertook an investigation of the trust account of a firm of which the defendant was a principal. The Law Society uncovered evidence of misappropriation of trust monies. On 13 December 2018 orders were made by Rothman J in proceedings 2018/00383777 appointing a receiver to the defendant’s practice. On 21 December 2018, McCallum J appointed a receiver to another firm with which the defendant was concerned: Council of the Law Society of New South Wales v Cassidy [2018] NSWSC 2008. In January 2019 the defendant’s practising certificate was suspended on an ongoing basis.
On 11 July 2019 Lonergan J made interim orders under s 447 of the Legal Profession Uniform Law (NSW) No 16a of 2014 (the Uniform Law) restraining the defendant from engaging in legal practice: Council of the Law Society of New South Wales v XX [2019] NSWSC 874.
On 20 August 2019 Bellew J made final orders pursuant to s 447(3) of the Uniform Law: Council of the Law Society of NSW (No 2) [2019] NSWSC 1079.
Subsequent to the provision of that judgment to the parties by Bellew J, solicitors acting for the defendant sought that publication of it be withheld on the basis of the defendant’s mental health. Interim orders were made until a final hearing of that application took place before Bellew J on 21 November 2019. On that day Bellew J indicated that he would make orders pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (CSNPO Act), and directed that the parties bring in short minutes to give effect to his Honour’s reasons: Council of the Law Society of NSW v XX (No 3) [2019] NSWSC 1630. On 12 December 2019 consent orders were made which, in substance, provided that the defendant was to be referred to by the pseudonym XX in various orders made by the Court, including in the judgments of Lonergan J of 11 July 2019 and Bellew J of 20 August 2019. The orders of 12 December 2019 were for a period of 12 months from the date of the orders.
On 16 December 2020, the orders made by Bellew J were extended by Campbell J to 16 March 2021 or until further order of the Court, whichever was the earlier: Council of the Law Society of NSW v XX [2020] NSWSC 1912.
The defendant was charged with, and pleaded guilty to, five counts of dishonestly obtaining a financial advantage by deception contrary to s 192E of the Crimes Act 1900 (NSW), with four other counts of the same charge being placed on a Form 1. On 18 December 2020 the defendant was sentenced by Judge Abadee in the District Court to a term of imprisonment of eight years with a non-parole period of four years and nine months expiring on 18 August 2024, with the balance of term expiring on 18 November 2027: R v XX [2020] NSWDC 771.
By notice of motion dated 16 December 2020 the defendant now seeks a further order pursuant to s 7 of the CSNPO Act on the ground contained in s 8(1)(c) of the Act to prevent the publication of information tending to reveal his identity as the person who is alleged to have engaged in the conduct the subject of the proceedings, and that he be referred to by the pseudonym XX in various orders and judgments of the Court. In addition the defendant seeks that the names of his family members, and the name and location of his former practice be referred to by pseudonyms in the judgments, and that the orders apply for the period of the defendant’s sentence and for a further three years after its expiry. The notice of motion, following the orders made by Bellew J in December 2019, carves out various exceptions which will be mentioned later.
The basis for the extension of the orders sought is the defendant’s psychiatric condition. The defendant has a diagnosis of severe Bipolar I Disorder. Although he is medicated for that illness, he continues to have suicidal tendencies and tendencies to self-harm. The defendant relies on medical reports from his treating psychiatrist Dr Artin Jebejian, and two forensic psychiatrists, Dr Richard Furst and Dr Alexey Sidorov, who were engaged for his sentence proceedings and for the present application,.
The Law Society submitted that the Court could be satisfied on the basis of the evidence in support of the motion that the continuation of the orders made by Bellew J in December 2019 should be extended. However, the Law Society opposes the proposed period of the continuation on the basis that it is not necessary to achieve the purpose for which the non-publication orders are made. The Law Society proposes that the orders should apply until a date six months after the expiration of the defendant’s non-parole period or until further order, whichever is the earlier. The Law Society proposes some minor amendments to the exceptions to the orders that were made by Bellew J.

Legal principles

Section 7 of the CSNPO Act gives the Court power to make a suppression order or a non-publication order on the grounds identified in s 8 of the Act to prohibit or restrict the publication of information tending to reveal the identity of any person who is (inter alia) a party to the proceedings or is a person related to or otherwise associated with such a party. As I have said, the present application is put on the basis of the ground contained in s 8(1)(c) which is that:

the order is necessary to protect the safety of any person.

Section 6 requires the Court to take into account:

that a primary objective of the administration of justice is to safeguard the public interest in open justice.

In Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 Bathurst CJ and McColl JA said at [27]:

The operative condition for making a suppression order under s 8 of the CSPO Act is that it be "necessary" to do so, which "... is a strong word [which, in] collocation [with] necessity to prevent prejudice to the administration of justice ...'suggests Parliament was not dealing with trivialities'": Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 (at [30]). The observations in Hogan v Australian Crime Commission were made in relation to a legislative scheme which, while it required the jurisdiction of the Court to be exercised in open court (s 17, Federal Court of Australia Act ) did not contain a provision in like terms to s 6 of the CSPO Act. That provision, in our view, reinforces the legislative intention that CSPO Act orders should only be made in exceptional circumstances, a position which prevailed at common law: John Fairfax Publications Pty Ltd v District Court of NSW (at [21]).

In AB (A Pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46, the Court of Criminal Appeal was considering an appeal from a refusal of a District Court judge to make a non-publication order in respect of the applicant who had been convicted of child sex offences. The application was made upon the ground contained in s 8(1)(c) of the Act.
The joint judgment of the Court (Hoeben CJ at CL; Price & Adamson JJ) said:

[56] The authorities have considered two possible approaches to the interpretation of s 8(1)(c), the so-called “calculus of risk” approach and the “probable harm” approach. The calculus of risk approach requires the court to consider the nature, imminence and degree of likelihood of harm occurring to the relevant person. If the prospective harm is very severe, it may be more readily concluded that the order is necessary even if the risk does not rise beyond a mere possibility. The second postulated interpretation, the probable harm approach, requires an applicant to prove that, in the absence of an order, it would be more probable than not that the relevant person would suffer harm. The calculus of risk approach has been specifically adopted in AB (A Pseudonym) v CD (A Pseudonym) [2019] HCA 6 at [14] (Nettle J); Hamzy v R [2013] NSWCCA 156 at [60] (Harrison J) and Roberts-Smith v Fairfax Media Publications Pty Ltd [2019] FCA 36 at [16]-[17] (Besanko J). The question of which approach was the correct one did not need to be decided in D1 v P1 at [55] (Bathurst CJ, McColl JA and McClellan CJ at CL agreeing).
[57] The differences between the two approaches can be illustrated by the following example. The probable harm approach would require an applicant to prove that death threats made to him or her would be likely to be carried out. Under the calculus of risk approach the nature of the harm (death) would carry weight in the calculus of risk which would have the effect that it would not be necessary for the court to be satisfied that it was probable that the threats would be carried out. The fact that the possible harm was so serious would lead to the court’s being satisfied under s 8(1)(c) that an order was necessary in circumstances where it could not be said to be probable that the threats would be carried out.
[58] We regard the statement extracted from Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim at [46] as consistent with the calculus of risk approach. We do not consider the second approach to be consistent with the words of s 8(1)(c). The evident purpose of s 8(1)(c) is to provide a mechanism to protect the safety of persons who would otherwise be endangered by publication of proceedings in accordance with the principles of open justice. This purpose is more effectively advanced by the calculus of risk approach which is, therefore, to be preferred: s 33 of the Interpretation Act 1987 (NSW). As Nettle J said in AB (A Pseudonym) v CD (A Pseudonym) at [15]:
“The criterion is not one of necessity to prevent harm to a person but of necessity to protect the safety of a person. And safety is a protean conception which is certainly informed by the nature and gravity of apprehended harm and the risk of its occurrence. To take but one, prosaic example, no one today rationally doubts that the wearing of seat belts while travelling in a motor car is necessary to protect the safety of drivers and passengers. At the same time, it is certainly not the case that, but for wearing a seat belt, it is more probable than not that an occupant of a moving motor car will suffer harm. That is not to suggest that just any risk of harm will suffice. To repeat, the provision is not concerned with trivialities. But what it is intended to convey is that, because the idea of safety invariably entails the assessment of risk, it should be regarded as sufficient to satisfy the test of ‘necessary to protect the safety of any person’ that, upon the evidence, the court is satisfied of the existence of a possibility of harm of such gravity and likelihood that, without the order sought, the risk of prejudice to the safety of the person would range above the level that can reasonably be regarded as acceptable.”
…

[60] In the present case the risk to the applicant’s psychological safety had a real potential to affect his physical safety. The evidence that the publicity had given rise to suicidal ideation and caused the applicant to make plans for his own death was sufficient to require the Court below to consider whether the ground under s 8(1)(c) was made out. His Honour failed to do so. This matter alone is sufficient to warrant a grant of leave and oblige this Court to embark on a rehearing of the application to determine for itself whether a non-publication order ought be made.

Is an order necessary?

Each of the three psychiatrists, who provided reports in 2019 (in the case of Dr Jebejian) and 2020 prior to the sentencing of the defendant (in respect of all three psychiatrists), provided updated reports in February 2021 when they interviewed the defendant following his sentence. It is not necessary to quote at length from their most recent reports. It is enough to note the following.
On 3 January 2021 the Daily Telegraph published in its column entitled “The Snitch” details of the putting in place of the non-publication orders by Campbell J in December 2020. The article, under the heading “Who’s the lawyer?”, commented that the newspaper could not identify the lawyer who was the subject of these judgments. The newspaper returned to the same matter in its column on 10 January 2021, providing some details from the judgment of Judge Abadee’s judgment about how two of the victims of the lawyer’s defalcations were a judge’s elderly parents who were about to be evicted from an aged care facility into which they had bought.
Dr Jebejian said in his report dated 2 February 2021:

Without the benefit of anonymisation, the articles would have materially increased the risk that he would have acted on his suicidal ideations. Even with his name anonymised, [X] was extremely unsettled by the publications. He has become paranoid that his name is going to be released or that people will be able to uncover his identity.
…
[X] is already, even without publication, a high risk candidate for suicide. He is suffering from severe Bipolar I Disorder and faces significant psychological stressors. If non-publication orders were not granted and his name is published, the risk of [X] committing suicide would increase substantially.

Dr Furst said in his report of 14 February, 2021:

I remain of the opinion that the publication of information about [X’s] conduct, the subject of civil and/or civil [scil. criminal] proceedings, would exacerbate his depression and magnify his negative thinking, nihilistic thinking, suicidal ideation and negative cognitive bias due to the public nature of such publications.
…
The other way of expressing my opinion, is that based on all of the available information and the precedent cited above, without a non-publication order extended over several years (including allowing X’s a lengthy period of adjustment into the community when released on parole), the publication of his case by the media is likely to result in him killing himself, or at least a much higher risk of him killing himself then would otherwise have been the case. (italics added)

The “precedent cited above” was a reference to Rene Rivkin who had been assessed by Dr Furst after he had been sentenced in 2003. Dr Furst expressed the opinion that it was almost certain that the negative media attention Mr Rivkin received,

caused a profound negative psychiatric and psychological impact, … and was ultimately a substantive cause in Rivkin’s actions of killing himself.

In his report dated 17 February 2021, Dr Sidorov recorded that the defendant said that, if details were released to the media which included his name, he had plans to slit his throat or slit his wrists, and that if his name were to be published in the future he would feel worthless and would either commit suicide or have a stroke due to his high blood pressure. Dr Sidorov said that it was widely known and accepted that individuals with Bipolar Affective Disorder were at much greater risk of suicide compared to the general population, particularly if they were subjected to significant stressors. Dr Sidorov said that given the defendant’s access to a psychiatrist in the custodial setting was limited, his risk of suicide would be further increased if the non-publication order was to be revoked.
In the light of this evidence, I am satisfied that the possible harm to the defendant is so serious that an order is necessary to protect his safety.

The length of the order

Although in the prayers for relief in the notice of motion the defendant seeks that the non-publication orders apply until a date three years following the conclusion of the defendant’s sentence (that date would be 18 November 2030), Mr Lange of counsel for the defendant said that an extension was sought only until the date of expiry of the sentence, being 18 November 2027.
Mr Lange submitted that the medical evidence made clear that the defendant would continue to face stressors referred to in the various medical reports at least up until the time of the expiry of his whole sentence. He submitted that the medical evidence showed that the fact of being released to parole itself would be a sufficient stressor, and the suggestion that a further application could be made in the six month period after he was released to parole would simply add a further stress to the defendant’s condition. Mr Lange submitted that, in any event, the choice of a period six months after the expiry of the non-parole period was arbitrary and without any support in the medical reports.
Mr Lange relied on what Dr Jebejian said in his report of 2 February 2021 as follows:

16.   [X] will also experience difficulties after release in adapting to the community which are likely to trigger depressive episodes. He will struggle in finding employment with a criminal record and gaining financial stability, rejection from old friends and difficulties in making new friends, the culture shock in leaving the controlled institutional life in gaol and facing the volatilities of life. Although, these experiences are common to all individuals on parole, they would have a particular impact on [X] due to his severe Bipolar condition.
17.   In light of the above, he will be extremely fragile, and he will remain a high-risk candidate for self-harm and suicide when on parole. If non-publication orders are not in place, these factors would result in a severe risk of suicide and self-harm to [X].
18.   [X] will continue to suffer Bipolar symptoms and be a suicide risk for the rest of his life. It is difficult to predict the extent of this and the impact of future publication on his mental condition beyond the length of his sentence. I recommend a review of his situation be undertaken at that time.

Mr Lange also drew attention to what Dr Furst said in his report of 14 February 2021, that there was a substantial increase in the rate of suicide and death from other causes in the period after an inmate is released from custody, and to Dr Furst remarks which I have set out above at [18]. Mr Lange also relied on what Dr Sidorov said in his report of 17 February 2021, that when the defendant is released back into the community, he will face the challenges of readjusting back to life outside of prison, which will be a significant stressor for him and may cause his mental illness to worsen.
Section 12(2) of the Act provides:

In deciding the period for which an order is to operate, the court is to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made.

One of the difficulties on the present application is that it is necessary to determine the appropriate length of time for the order to endure, at a time prior to when it can properly be ascertained that the defendant has become more stabilised, both in terms of his pharmacological treatment and any other psychological and psychiatric treatment available to him now as a sentenced prisoner. Further, the psychiatric reports that predate the sentence imposed by Judge Abadee are of more limited usefulness in coming to a view about the length of time the non-publication orders should remain in place. Those psychiatric reports of 2020 make clear that a very significant stressor for the defendant at that time was the uncertainty surrounding the sentence which would be imposed upon him. They also pre-date the publication of the Daily Telegraph articles. However, those reports contain some helpful background information about the defendant’s condition.
I accept that by reason of the defendant’s Bipolar condition he will always be at an increased risk of suicide compared with members of the community who do not suffer from mental health issues. I accept also that publication of his identity until some period after he is released from custody would, on all of the medical evidence, be detrimental to him and increase his risk of suicide or self-harm. I accept the psychiatric evidence that being released to parole itself will be a significant stressor for the defendant, but there is little in the psychiatric evidence which provides assistance as to how long that stress is likely to last, given that the defendant must spend a minimum of three years and three months on parole.
I accept, as Dr Jebejian says, that it is difficult to predict the extent of his suicide risk and the impact of future publication of his identifying details on his mental condition beyond the length of his sentence, but there is nothing to indicate why the end of his sentence is a significant point in time. By that time he will, as I have said, have likely served three years and three months on parole reintegrating into the community. His suicide risk will certainly be elevated above general members of the community beyond that time, because that is the nature of his condition. It is not, however, clear why maintaining the non-publication order is reasonably necessary up to the end of his sentence.
When discussing the meaning of the word “necessary”, Bathurst CJ said in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 at [8] that it is not sufficient that orders are merely reasonable or sensible. Even if that were the appropriate test when considering s 12, regard would still need to be had to the mandatory requirement in s 6 that a primary objective of the administration of justice is to safeguard the public interest in open justice.
Although Mr Lange was critical of the period for which the Law Society argues as being arbitrary, so too is any other date after the defendant’s release on parole, when regard is had to the psychiatric evidence. The psychiatrists say that the defendant is at an increased risk of suicide for the whole of his life, but it is neither sought nor suggested that the order should endure for the term of his natural life.
The further factor to consider is that the longer time goes on, the less interest there is likely to be, from the media or otherwise, in the identity of the person, responsible for the defalcations that took place in 2018. A person not suffering from mental health issues would ordinarily take the view that it was less likely as time passes that there would be media or other interest in that person’s past wrongdoing. The psychiatrists do not discuss this matter. They do not say whether the Bipolar condition would mean that the fears the defendant currently has are unlikely to diminish in that way.
One can readily understand the defendant’s high level of anxiety at or around the time of his sentencing that there would be considerable media interest in the matter. Nor is it unreasonable to assume there might be media interest in the matter, although to a lesser extent, at the time of his release from custody. However, the reality is that ordinarily only notorious murderers, rapists and white collar criminals are of any interest to the media at the time of their release from custody. The defendant does not fall into any of those categories. In particular, he is scarcely a notorious white collar criminal. Following a reasonable amount of time passing after his release from custody, it would not be reasonable to assume that the media would have any interest in publicising the matter.
While it is always open to the defendant to make a further application to extend the non-publication orders, there is some force in Mr Lange’s submission that the defendant should not be placed in that position shortly after he is released to parole, partly because of the time it takes to get such a matter on for hearing, and partly because of the stress he will be under as a result of being released to parole. The Court is constrained, however, by the terms of s 12(2), seen in the light of s 6. The order should not operate for longer than is reasonably necessary.
In those circumstances, the Court should prevent any publication of the defendant’s identity for a reasonable period after he is actually released to parole rather than the date he is eligible for it, as the Law Society contended. I have accepted that the psychiatric evidence is that such release is a stressor for the defendant, and there is a small prospect of media interest at the time of his release. I consider that allowing a period of 18 months from the date of his release to parole before any restriction is lifted means that the order will not operate for longer than is reasonably necessary. I cannot be satisfied on the present evidence that it is reasonably necessary for the order to operate beyond that time. An 18 month period will give the defendant sufficient time to adjust to parole and to move for an extension of the order if it transpires that his psychiatric condition then requires it.

The exceptions to the orders

As mentioned earlier, the orders made by Bellew J contained in paragraphs 6 to 13 what were described as exceptions. The purpose of these exceptions was to ensure that the responsibilities of the Law Society flowing from the defalcations were not impeded. The orders proposed by the Law Society flowing from the present application were slightly modified for stylistic reasons, and no objection was taken by counsel for the defendant to those modifications. Disputes remained, however, in relation to paragraphs 9, 10 and 11 where modifications were sought by the defendant. In addition, I raised issues in relation to paragraph 2.

Paragraphs 9, 10 and 11

Paragraphs 9, 10 and 11 as proposed by the Law Society, and with underlining initially proposed by the defendant, read:

9   Orders 1 to 3 inclusive do not prevent the publication (or, for the avoidance of doubt, the disclosure) of information for any one or more of the following purposes, where it is necessary and any such purpose is related to the conduct the subject of these proceedings:
a.   carrying out, enforcing or overseeing Orders 3 to 8 inclusive of the orders made by the Court in these proceedings on 20 August 2019;
b.   investigating, handling and/or otherwise dealing with matters, allegations, claims or complaints involving the Defendant or any law practice, legal practitioner or former legal practitioner, with which he has been associated, including but not limited to claims on the Fidelity Fund;
c.   seeking legal advice in relation to the Defendant and/or matters, allegations, claims or complaints against or involving the Defendant or any law practice with which he has been associated, including but not limited to claims on the Fidelity Fund;
d.   instituting and/or carrying on legal proceedings against or involving the Defendant in any Court or Tribunal;
e.   the exercise of the receiver's functions in relation to the law practice known as XXX Pty Ltd (trading as YY) and/or the law practice known as ZZZ Pty Ltd (trading as ZZ), whether by the receiver (whether present or his successor), or by any delegate, associate, employee or legal representative of the receiver; and/or
f.   the exercise of the manager's functions in relation to YY and/or ZZ, whether by the manager (whether present or his successor), or by any delegate, associate, employee or legal representative of the manager.
10.   Orders 1 to 3 inclusive do not prohibit the publication (or, for the avoidance of doubt, the disclosure) of the following matters, where the publication is necessary and is related to the conduct the subject of these proceedings:
a.   information about the suspension, or status, of the Defendant's practising certificate;
b.   information concerning claims which may be made against the Fidelity Fund in relation to the Defendant, YY or ZZ, or any other law practice with which the Defendant has been associated, including but not limited to information inviting any person who considers they have a claim to make one; and/or
c.   information concerning the receivership and/or management of YY and/or ZZ, including but not limited to information concerning the appointment of any receiver and/or manager to YY and/or ZZ,
whether such publication or disclosure is, or has been, made before or after the making of these orders.
11.   Orders 1 to 3 inclusive do not prohibit the publication (or, for the avoidance of doubt, the disclosure) of the following information, where the publication is necessary and the information is related to the conduct the subject of these proceedings:
a.   to any client, former client or purported client of the Defendant, YY, ZZ or any other law practice, legal practitioner or former legal practitioner, with which the Defendant has been associated or has purportedly been associated for the purposes of providing such client, former client or purported client with information reasonably necessary to permit them to take steps to protect their rights and/or interests; or
b.   by any such client, former client or purported client for the purposes of taking such steps as are reasonably necessary to protect their rights and/or interests, including but not limited to seeking legal or other professional advice and/or commencing proceedings (whether against the Defendant or not), or to assist with any investigation or proceeding concerning the Defendant,
whether such publication or disclosure is, or has been, made before or after the making of these orders.        (underlining and italics added)

It may be observed that paragraphs 9b, 9c, 10b and 11a all refer to law practices and/or legal practitioners or former legal practitioners with whom or with which “the defendant has been associated”. (Paragraph 9c should probably also refer to “legal practitioner or former legal practitioner” after “law practice”.) The defendant’s concern comes from the word “associated”. It is submitted that the exceptions created by that word are so wide that they would have the capacity to cover any form of association. It was submitted that it could, for example include a solicitor who was retained by the defendant, even the firm acting for the defendant in the present proceedings.
During the hearing, Mr Lange said he would no longer seek that the underlined words be included. Rather, he proposed that after the word “associated” wherever it appears, the following words should be inserted:

“in the performance or purported performance of his conduct as a legal practitioner”.

The Law Society submitted that reading the paragraphs as a whole makes it very clear that the exception is made only for the limited purposes specified (e.g., “investigating, handling and/or otherwise dealing with matters, allegations, claims or complaints). Further, the Law Society submitted that the proposed words may limit the defendant’s conduct to the time he was not suspended from practice, whereas the enquiries and investigations must relate also to the time the defendant was suspended but continued to practise.
In my opinion, the Law Society’s submission should be accepted. The exceptions when read as a whole clearly relate to specific investigations, enquiries and claims arising from the conduct of the defendant, other legal practitioners and law practices connected to the defendant and his wrongdoing which led to the present proceedings and his criminal proceedings. It is not realistic to think that “associated” has any wider meaning than that context allows.
The additions proposed by the defendant should be disallowed.

Paragraph 2

Paragraph 2 reads as follows:

2. The defendant be referred to by the pseudonym (XX) in the Court, including but not limited to in the following judgments and orders:

a.   orders dated 13 December 2018 made by Rothman J in proceedings 2018/00383777.
b. the judgment of McCallum J dated 21 December 2018 in proceedings 2018/393901: [2018] NSWSC 2008;
c.   orders dated 11 June 2019;
d.   orders dated 14 June 2019;
e. the judgment of Lonergan J dated 11 July 2019: [2019] NSWSC 874;
f.   orders dated 20 August 2019;
g. the judgment of Bellew J dated 20 August 2019: [2019] NSWSC 1079;
h. the judgment of Bellew J dated 21 November 2019: [2019] NSWSC 1630;

I raised with Mr Lange at the hearing the question whether I had the power to vary or make amendments to the judgment of another judge except as the Uniform Civil Procedure Rules 2005 (NSW) allow. Quite apart from that consideration was whether it was necessary or appropriate that a non-publication order be made in relation to the orders made by Rothman J.
The orders made by Rothman J were for the appointment of a receiver to a practice formerly carried on by the defendant, although the defendant himself was not referred to in those orders. The orders were made pursuant to s 341 of the Uniform Law. Unsurprisingly, the terms of the orders provided no reason for the appointment. It does not appear that a judgment in the form of reasons was issued. That is also unsurprising given the terms of s 341 and the practice of the Court where the orders were made ex parte. The orders were made on 13 December 2018. Hitherto, there has been no application under the CSNPO Act in relation to non-publication of the name of the firm in those orders.
The main point being made by the psychiatric reports prepared in 2021 is the concern of the psychiatrists for the defendant’s welfare if there is publication of his identity as the person responsible for the defalcations. So, the report of Dr Furst said:

I was asked to re-assess [X] … for the purpose of proceedings in relation to extending the current non-publication… order that prevents the publication, inter alia, of information that reveals [X’s] identity in a manner which identifies his as the person who has engaged in conduct that is the subject of criminal and civil proceedings currently before the courts. (italics added)

It is difficult to see how, if the name of the firm was given a pseudonym, the orders would be meaningful. The principal order appoints a receiver to the named firm, not to a firm of a different name which results from applying a pseudonym. I was informed that the receivership is ongoing. For that reason, and on the bases that the orders were made more than two years ago, that no application has been made hitherto for any form of non-publication or suppression, and because there is nothing in the appointment of a receiver to a particular legal practice to suggest any wrongdoing by the defendant, let alone the criminal acts about which he is concerned, I do not consider that it is necessary (in terms of s 8(1)(c)) for a non-publication order to be made.
The judgment of McCallum J in Council of the Law Society of New South Wales v Cassidy is a little more problematic. It is a judgment appointing a receiver to a practice with which the defendant was involved. Although this judgment was given on 21 December 2018, no attempt has been made by the defendant to have orders made under the CSNPO Act until now. The defendant is mentioned in the judgment more than once, but only in one sentence at [6] in the judgment is there a reference to wrongdoing on his part. If that reference is to be anonymised, application will need to be made to McCallum J for such an alteration to be made. For similar reasons to those I gave in respect of Rothman J’s orders, it seems to me inappropriate to give the name of the firm a pseudonym.
To the extent that it is necessary to vary any part of the reasons for judgment or the orders of Bellew J and Lonergan J, their Honours have agreed that such variations should be made to those judgments and orders. The judgments which have not hitherto been published can then be published on Caselaw.
Although prayer 6 in the notice of motion sought an order that members of the defendant’s family, and the name and location of the defendant’s former practice be referred to by pseudonyms in the identified judgments, nowhere were the family members identified in the judgments, and nothing was said about those matters, except in relation to the orders of Rothman J after I had raised a perceived difficulty about varying those orders. I note that the notice of motion refers to “practice” without identifying which practice is referred to, and in circumstances where the defendant had established a number of practices, as the judgment of McCallum J makes clear.

Conclusion

I make the following orders:

Pursuant to s 7(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) (Suppression Act), on the basis of the ground in s 8(1)(c) of the Suppression Act, the publication of information tending to reveal the identity of the Defendant in a manner which identifies the Defendant as the person who is alleged to have engaged in the conduct, the subject of these proceedings, is prohibited.
The defendant be referred to by the pseudonym (XX) in the Court, including but not limited to in the following judgments and orders:

a. orders dated 11 June 2019;

b. orders dated 14 June 2019;

c. the judgment of Lonergan J dated 11 July 2019: [2019] NSWSC 874;

d. orders dated 20 August 2019;

e. the judgment of Bellew J dated 20 August 2019: [2019] NSWSC 1079;

f. the judgment of Bellew J dated 21 November 2019: [2019] NSWSC 1630;

g. orders dated 12 December 2019 made by Bellew J; and

h. any order and/or judgment made in this proceeding.

The Defendant’s family members, where referred to as such, location, and name of the Defendant’s former practices be referred to by a pseudonym in the above judgments.
Pursuant to s 11 of the Suppression Act, Orders 1 to 3 apply throughout the Commonwealth.
Orders 1 to 4 inclusive apply until the expiration of 18 months after the defendant’s release to parole from his current custodial sentence in District Court proceedings 2019/00048381 and 2019/00363260.

Exceptions to orders 1, 2 and 3

Orders 1 to 3 inclusive do not prevent the publication (or, for the avoidance of doubt, the disclosure) of any information to any Court or Tribunal.
Orders 1 to 3 inclusive do not prevent any Court or Tribunal from making an order that information, whether or not it tends to reveal the identity of the Defendant, may be published (or, for the avoidance of doubt, disclosed).
Orders 1 to 3 inclusive do not prevent the publication (or, for the avoidance of doubt, the disclosure) of information to the New South Wales Police, or to the Australian Federal Police.
Orders 1 to 3 inclusive do not prevent the publication (or, for the avoidance of doubt, the disclosure) of information for any one or more of the following purposes:

a. carrying out, enforcing or overseeing Orders 3 to 8 inclusive of the orders made by the Court in these proceedings on 20 August 2019;

b. investigating, handling and/or otherwise dealing with matters, allegations, claims or complaints involving the Defendant or any law practice, legal practitioner or former legal practitioner with which he has been associated, including but not limited to claims on the Fidelity Fund;

c. seeking legal advice in relation to the Defendant and/or matters, allegations, claims or complaints against or involving the Defendant or any law practice, legal practitioner or former legal practitioner with which he has been associated, including but not limited to claims on the Fidelity Fund;

d. instituting and/or carrying on legal proceedings against or involving the Defendant in any Court or Tribunal;

e. the exercise of the receiver’s functions in relation to the law practice known as XXX Pty Ltd (trading as YY) and/or the law practice known as ZZZ Pty Ltd (trading as ZZ), whether by the receiver (whether present or his successor), or by any delegate, associate, employee or legal representative of the receiver; and/or

f. the exercise of the manager’s functions in relation to YY and/or ZZ, whether by the manager (whether present or his successor), or by any delegate, associate, employee or legal representative of the manager.

Orders 1 to 3 inclusive do not prohibit the publication (or, for the avoidance of doubt, the disclosure) of:

a. information about the suspension, or status, of the Defendant’s practising certificate;

b. information concerning claims which may be made against the Fidelity Fund in relation to the Defendant, YY or ZZ, or any other law practice with which the Defendant has been associated including but not limited to information inviting any person who considers they have a claim to make one; and/or

c. information concerning the receivership and/or management of YY and/or ZZ, including but not limited to information concerning the appointment of any receiver and/or manager to YY and/or ZZ,

whether such publication or disclosure is, or has been, made before or after the making of these orders.

Orders 1 to 3 inclusive do not prohibit the publication (or, for the avoidance of doubt, the disclosure) of any information:

a. to any client, former client or purported client of the Defendant, YY, ZZ or any other law practice, legal practitioner or former legal practitioner with which the Defendant has been associated or has purportedly been associated for the purposes of providing such client, former client or purported client with information reasonably necessary to permit them to take steps to protect their rights and/or interests; or

b. by any such client, former client or purported client for the purposes of taking such steps as are reasonably necessary to protect their rights and/or interests, including but not limited to seeking legal or other professional advice and/or commencing proceedings (whether against the Defendant or not), or to assist with any investigation or proceeding concerning the Defendant,

whether such publication or disclosure is, or has been, made before or after the making of these orders.

Except as otherwise specified in these orders, Orders 1 to 3 inclusive do not apply to publications which came into existence prior to the date of the orders made by Bellew J on 12 December 2019.
By consent, the parties agree that Orders 1 to 3 inclusive do not prevent the redacted or pseudonymised judgments and orders in the proceeding from being published or disclosed.

Costs

In relation to the Defendant’s notice of motion dated 16 December 2020, each party to bear its own costs.

Other orders

The order made by Bellew J on 21 November 2019 that the reasons for judgment (Council of the Law Society of NSW v XX (No 3) [2019] NSWSC 1630) be supressed is vacated.

**********

Amendments

26 March 2021 - Orders entered into judgment.

Decision last updated: 26 March 2021

Medium Neutral Citation:	Council of the Law Society of New South Wales v XX (No 4) [2021] NSWSC 192
Hearing dates:	24 February 2021
Date of orders:	26 March 2021
Decision date:	08 March 2021
Jurisdiction:	Common Law
Before:	Davies J
Decision:	1. Pursuant to s 7(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) (Suppression Act), on the basis of the ground in s 8(1)(c) of the Suppression Act, the publication of information tending to reveal the identity of the Defendant in a manner which identifies the Defendant as the person who is alleged to have engaged in the conduct, the subject of these proceedings, is prohibited. 2. The defendant be referred to by the pseudonym (XX) in the Court, including but not limited to in the following judgments and orders: a. orders dated 11 June 2019; b. orders dated 14 June 2019; c. the judgment of Lonergan J dated 11 July 2019: [2019] NSWSC 874; d. orders dated 20 August 2019; e. the judgment of Bellew J dated 20 August 2019: [2019] NSWSC 1079; f. the judgment of Bellew J dated 21 November 2019: [2019] NSWSC 1630; g. orders dated 12 December 2019 made by Bellew J; and h. any order and/or judgment made in this proceeding. 3. The Defendant’s family members, where referred to as such, location, and name of the Defendant’s former practices be referred to by a pseudonym in the above judgments. 4. Pursuant to s 11 of the Suppression Act, Orders 1 to 3 apply throughout the Commonwealth. 5. Orders 1 to 4 inclusive apply until the expiration of 18 months after the defendant’s release to parole from his current custodial sentence in District Court proceedings 2019/00048381 and 2019/00363260. Exceptions to orders 1, 2 and 3 6. Orders 1 to 3 inclusive do not prevent the publication (or, for the avoidance of doubt, the disclosure) of any information to any Court or Tribunal. 7. Orders 1 to 3 inclusive do not prevent any Court or Tribunal from making an order that information, whether or not it tends to reveal the identity of the Defendant, may be published (or, for the avoidance of doubt, disclosed). 8. Orders 1 to 3 inclusive do not prevent the publication (or, for the avoidance of doubt, the disclosure) of information to the New South Wales Police, or to the Australian Federal Police. 9. Orders 1 to 3 inclusive do not prevent the publication (or, for the avoidance of doubt, the disclosure) of information for any one or more of the following purposes: a. carrying out, enforcing or overseeing Orders 3 to 8 inclusive of the orders made by the Court in these proceedings on 20 August 2019; b. investigating, handling and/or otherwise dealing with matters, allegations, claims or complaints involving the Defendant or any law practice, legal practitioner or former legal practitioner with which he has been associated, including but not limited to claims on the Fidelity Fund; c. seeking legal advice in relation to the Defendant and/or matters, allegations, claims or complaints against or involving the Defendant or any law practice, legal practitioner or former legal practitioner with which he has been associated, including but not limited to claims on the Fidelity Fund; d. instituting and/or carrying on legal proceedings against or involving the Defendant in any Court or Tribunal; e. the exercise of the receiver’s functions in relation to the law practice known as XXX Pty Ltd (trading as YY) and/or the law practice known as ZZZ Pty Ltd (trading as ZZ), whether by the receiver (whether present or his successor), or by any delegate, associate, employee or legal representative of the receiver; and/or f. the exercise of the manager’s functions in relation to YY and/or ZZ, whether by the manager (whether present or his successor), or by any delegate, associate, employee or legal representative of the manager. 10. Orders 1 to 3 inclusive do not prohibit the publication (or, for the avoidance of doubt, the disclosure) of: a. information about the suspension, or status, of the Defendant’s practising certificate; b. information concerning claims which may be made against the Fidelity Fund in relation to the Defendant, YY or ZZ, or any other law practice with which the Defendant has been associated including but not limited to information inviting any person who considers they have a claim to make one; and/or c. information concerning the receivership and/or management of YY and/or ZZ, including but not limited to information concerning the appointment of any receiver and/or manager to YY and/or ZZ, whether such publication or disclosure is, or has been, made before or after the making of these orders. 11. Orders 1 to 3 inclusive do not prohibit the publication (or, for the avoidance of doubt, the disclosure) of any information: a. to any client, former client or purported client of the Defendant, YY, ZZ or any other law practice, legal practitioner or former legal practitioner with which the Defendant has been associated or has purportedly been associated for the purposes of providing such client, former client or purported client with information reasonably necessary to permit them to take steps to protect their rights and/or interests; or b. by any such client, former client or purported client for the purposes of taking such steps as are reasonably necessary to protect their rights and/or interests, including but not limited to seeking legal or other professional advice and/or commencing proceedings (whether against the Defendant or not), or to assist with any investigation or proceeding concerning the Defendant, whether such publication or disclosure is, or has been, made before or after the making of these orders. 12. Except as otherwise specified in these orders, Orders 1 to 3 inclusive do not apply to publications which came into existence prior to the date of the orders made by Bellew J on 12 December 2019. 13. By consent, the parties agree that Orders 1 to 3 inclusive do not prevent the redacted or pseudonymised judgments and orders in the proceeding from being published or disclosed. Costs 14. In relation to the Defendant’s notice of motion dated 16 December 2020, each party to bear its own costs. Other orders 15. The order made by Bellew J on 21 November 2019 that the reasons for judgment (Council of the Law Society of NSW v XX (No 3) [2019] NSWSC 1630) be supressed is vacated.
Catchwords:	CIVIL PROCEDURE – suppression and non-publication – orders – earlier orders made and due to expire - further orders sought on the basis of defendant’s psychiatric illness – s 8(1)(c) Court Suppression and Non-publication Orders Act - solicitor who defrauded clients of money – where solicitor was convicted of five counts contrary to s 192E Crimes Act 1900 (NSW) and imprisoned – where media articles published without naming solicitor because of earlier orders – where solicitor suffers from Bipolar I Disorder – where risk of self-harm - where orders are necessary to protect defendant’s safety – length of orders – whether orders are reasonably necessary to operate until the end of defendant’s sentence – where media interest in case following defendant’s release from custody likely to be minimal – orders made until 18 months following defendant’s release from custody on parole
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW) ss 6, 7, 8, 12 Crimes Act 1900 (NSW) s 192E Legal Profession Uniform Law (NSW) No 16a of 2014 ss 341, 447 Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	AB (A Pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46 Council of the Law Society of NSW (No 2) [2019] NSWSC 1079 Council of the Law Society of New South Wales v Cassidy [2018] NSWSC 2008 Council of the Law Society of New South Wales v XX [2019] NSWSC 874 Council of the Law Society of NSW v XX [2020] NSWSC 1912 Council of the Law Society of NSW v XX (No 3) [2019] NSWSC 1630 Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 R v XX [2020] NSWDC 771 Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	Council of the Law Society of New South Wales (Plaintiff) XX (Defendant)
Representation:	Counsel: C Hamilton-Jewell (Plaintiff) P Lange & T Woods (Defendant) Solicitors: Law Society of New South Wales (Plaintiff) Hanna Legal (Defendant)
File Number(s):	2019/180938
Publication restriction:	Non-publication of information tending to reveal the identity of the Defendant pursuant to s 7(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) (Suppression Act) on the basis of the ground in s 8(1)(c ) of the Suppression Act.