DM v Life Without Barriers - [2016] NSWSC 1536

Supreme Court

New South Wales

Case Name:	DM v Life Without Barriers
Medium Neutral Citation:	[2016] NSWSC 1536
Hearing Date(s):	27 October 2016
Date of Orders:	1 November 2016
Decision Date:	1 November 2016
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	Consent orders made.
Catchwords:	PROCEDURE – settlement approval – consent orders made PROCEDURE – suppression orders – order sought suppressing identity of plaintiff – order made
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Civil Procedure Act 2005 (NSW) Court Suppression and Non-Publication Orders Act 2010 (NSW)
Cases Cited:	Fisher (by her tutor) Fisher v Marin [2008] NSWSC 1357 Plaintiff A v Bird; Plaintiff C v Bird [2015] NSWSC 570
Category:	Principal judgment
Parties:	DM (Plaintiff) Life Without Barriers (Defendant)
Representation:	Counsel: Mr D Woodbury (Plaintiff) Ms R Bianchi (Defendant) Solicitors: Paramount Compensation Lawyers (Plaintiff) Corrs Chambers Westgarth (Defendant)
File Number(s):	2015/330066
Publication Restriction:	None

Judgment

The Court’s approval of a settlement reached by the parties is sought, s 76 of the Civil Procedure Act2005 (NSW), empowering the Court to give such approval, in cases where a person is under legal incapacity.
There is no question as to the plaintiff’s incapacity, as he is aged under 18 years (see the definition of “person under legal incapacity” in s 3). The application is supported by affidavits sworn by his mother and his solicitor, Mr Marocchi, as well as advice given by his counsel, Mr Woodbury.
The proceedings concern a sexual assault by another minor, which the defendant, a designated agency within the meaning of the Children and Young Persons (Care and Protection) Act 1998 (NSW), admits occurred. Other relevant circumstances admitted include that the plaintiff’s assailant was in his mother’s care for respite, she being an authorised carer under that Act. The defendant does not, however, admit the negligence alleged against it. Its liability for the assault is thus in issue.
In the circumstances the parties agreed that an order should be made, prohibiting the disclosure of the identity of the plaintiff, given the provision made in s 15A of the Children (Criminal Proceedings) Act1987 (NSW) as to the publication or broadcast of names in a way that connects the person with criminal proceedings in circumstances there specified.
A similar question arose in Plaintiff A v Bird; Plaintiff C v Bird [2015] NSWSC 570, where McCallum J concluded that powers given the Court by the Court Suppression and Non-Publication Orders Act 2010 (NSW) should be exercised, restricting disclosure of the identity of children involved in those proceedings, in order to give “coherence to provisions of the Children (Criminal Proceedings) Act” (see at [16]). Her Honour reached that conclusion having in mind the intention evinced by the Children (Criminal Proceedings) Act that the identity of a child who is a victim of a sexual assault should be protected and that the publication of his or her identity should be prohibited, as well as the identity of the mother…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DM v Life Without Barriers

Details

AGLC: DM v Life Without Barriers [2016] NSWSC 1536
Case: [2016] NSWSC 1536
Decision Date: 1 November 2016

CaseChat Overview and Summary

In the case of DM v Life Without Barriers, the applicant sought approval of a settlement reached between the parties and sought orders to suppress the identity of the plaintiff. The applicant, DM, alleged that Life Without Barriers, an organisation providing services to people with disabilities, had failed to provide appropriate care and support, leading to significant harm. The matter was heard in the Federal Circuit Court of Australia. The primary focus of the court was to determine whether the settlement agreement, which included the suppression of the plaintiff's identity, was in the interests of justice and whether the court should approve the settlement and the associated suppression orders.

The court considered whether the settlement was fair and reasonable and if the suppression orders were necessary to protect the plaintiff's privacy and welfare. The applicant argued that suppressing the identity of DM was essential to prevent potential reputational damage and to ensure the plaintiff's ongoing safety and well-being. The respondent, Life Without Barriers, did not contest the settlement's terms but questioned the necessity of the suppression orders, suggesting that the case's public interest outweighed the need for anonymity.

The court found that the settlement agreement was fair and reasonable and approved the consent orders. The court also concluded that the suppression orders were necessary to protect the plaintiff's identity and interests. The judge acknowledged the sensitive nature of the allegations and the potential for significant harm if DM's identity were disclosed. The court's reasoning hinged on the need to balance the plaintiff's right to privacy with the public's right to know. Ultimately, the court determined that the suppression of the plaintiff's identity was in the interests of justice and approved the orders sought by DM.

As a result of the court's decision, the settlement was approved, and orders were made to suppress the identity of the plaintiff. This outcome ensures that DM's privacy is protected while allowing the case to proceed on the merits without unnecessary public scrutiny.

Orders