EFG bht HIJ v KLM

[2022] NSWSC 826

Supreme Court

New South Wales

Medium Neutral Citation:

EFG bht HIJ v KLM [2022] NSWSC 826

Hearing dates:

24 March 2022

Date of orders:

24 March 2022

Decision date:

24 March 2022

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

(1) Until further order, pursuant to the Court Suppression and Non-Publication Orders Act 2010, that the name and identity of the plaintiff be suppressed except as may be necessary for the proper conduct of these proceedings, upon the ground that the order is necessary to prevent prejudice to the proper administration of justice and is necessary for the protection of the plaintiff.

(2) Order 1 is to apply throughout the Commonwealth of Australia.

(3) Until further order, pursuant to the Court Suppression and Non-Publication OrdersAct 2010, that the name and identity of the tutor for the plaintiff be suppressed except as may be necessary for the proper conduct of these proceedings, upon the ground that the order is necessary to prevent prejudice to the proper administration of justice and the safety of the person.

(4) Order 3 is to apply throughout the Commonwealth of Australia.

(5) Until further order, pursuant to the Court Suppression and Non-Publication Orders Act 2010, that the publication of the name of the defendant and any information leading to identify him be prohibited except as may be necessary for the proper conduct of these proceedings, upon the ground that the order is necessary to prevent prejudice to the proper administration of justice.

(6) Order 5 is to apply throughout the Commonwealth of Australia.

(7) Until further order, the plaintiff in these proceedings:

(a) be known as “EFG”;

(b) be described in all pleadings and all documents filed and served in the proceedings as “EFG”; and

(c) except as may be necessary for the proper conduct of the proceedings, be only referred to as “EFG”.

(8) Until further order, that the plaintiff's tutor in these proceeding:

(a) be known as “HIJ”;

(b) be described in the proceedings and all documents to be filed in accordance with r 7.16 of the UCPR or served in the proceedings as “HIJ”; and

(c) except as may be necessary for the proper conduct of the proceedings, be only referred to as “HIJ”.

(9) Until further order, that the defendant in these proceedings:

(a) be known as “KLM”;

(b) be described in all pleadings and all documents filed and served in the proceedings as “KLM”; and

(c) except as may be necessary for the proper conduct of the proceedings, be only referred to as “KLM”.

(10) The name of the proceedings be changed so that the proceedings be referred to as “EFG by her Tutor HIJ v KLM”.

(11) Leave be granted, that any documents filed on or behalf of the plaintiff to provide her address as the address of her solicitor.

(12) Any amended statement of claim together with the documents required by r 7.16 of Uniform Civil Procedure Rules 2005 (NSW), be filed within 28 days of these orders.

(13) Costs of this notice of motion be reserved.

Catchwords:

CIVIL PROCEDURE – suppression and non-publication – orders for suppression of names and use of pseudonyms in action for trespass to the person – no question of principle

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 6, 8

Category:

Procedural rulings

Parties:

EFG bht HIJ (Plaintiff)
KLM (Defendant)

Representation:

Counsel:
K Boettcher (Plaintiff)
M Short (Defendant)

Solicitors:
GJ Gooden Solicitor & Notary Public (Plaintiff)
Madison Marcus Law Firm Pty Ltd (Defendant)

File Number(s):

2021/222411

Publication restriction:

This judgment is redacted in accordance with the non-publication orders.

EX TEMPORE Judgment (REVISED)

1. The plaintiff, with the consent of the defendant, brings a notice of motion seeking certain orders, most of which are under the Court Suppression and Non-Publication Orders Act 2010 (NSW). The other orders are essentially orders for pseudonyms to be employed, in terms of the naming of the parties.

2. The Act, as is put in helpful written submissions by counsel for the plaintiff, requires a very high standard to be met before the fundamental open justice principle is to be overcome and it is a test, at common law and also under the Act, of necessity. These strictures are set out in the provisions of the Act, including in the grounds under s 8 and in the fundamental precept described in s 6 under the heading of “Safeguarding public interest in open justice”.

3. It is unnecessary to go into great detail, but the case involves an allegation of trespass to the person, in the sense of a sexual assault having been committed by the defendant; at the same time there are criminal proceedings, the details of which are unimportant, but which involve an allegation of sexual intercourse without consent.

4. As I understand it, the criminal proceedings resulted in the discharge of the jury, without reaching a verdict, when it was initially before the Court. There was then a conviction, which was subsequently overturned by the Court of Criminal Appeal as a result of misdirections provided to the jury by the trial Judge concerning the issue of recklessness and is now, I am told this morning, listed for a third trial on 6 March 2023. The criminal proceedings have been protracted as a result of that scantily described chronology.

5. The case, for reasons which are unimportant and seem to have something to do with the occupation of the defendant, has attracted a large, not to say ludicrous, amount of publicity and that publicity has occurred, as I understand the evidence tendered on this notice of motion, to include the last time the case was before this Court, that is the civil proceedings with which I am now concerned. The result has been, according to the evidence, an exacerbation of the kinds of psychological injuries described by the plaintiff which, on the plaintiff's case, arise as a result of the incident giving rise to the allegations of what I will describe generally as assault. It is therefore put that the orders are “necessary to protect the safety of a person”,[1] being in this instance the plaintiff, and it might also be thought they would be “necessary in the public interest”, because of the ongoing criminal proceedings, and that “that public interest significantly outweighs the public interest in open justice.”[2]

   1. Court Suppression and Non-Publication Orders Act, s 8(c).

   2. Court Suppression and Non-Publication Orders Act, s 8(e).

6. I am satisfied that the test of necessity, as it is reflected both in ss 6 and 8 of the Act, is met. Both parties agree to that, and of course there are other interests who are not represented here today, but on the material before me it is clearly a case where the orders should be made and accordingly I propose to make orders in the terms set out in the notice of motion, that is orders 1 through 13. I make those orders and ask that they be entered forthwith.

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Endnotes

Decision last updated: 22 June 2022