Gersbach v Gersbach (No 2)

[2016] NSWSC 762

Supreme Court

New South Wales

Medium Neutral Citation:	Gersbach v Gersbach (No 2) [2016] NSWSC 762
Hearing dates:	19 May 2016
Decision date:	10 June 2016
Jurisdiction:	Common Law
Before:	Button J
Decision:	(1) The amended notice of motion of the defendant is dismissed. (2) The defendant must pay the costs of the plaintiff of the proceedings before me.
Catchwords:	PROCEDURE – civil – judgments and orders – motion for non-publication order – proper administration of justice – physical and non-physical safety of either party to proceedings – motion dismissed
Legislation Cited:	Court Suppression and Non Publication Orders Act 2010 (NSW), ss 4, 6, 8, 8(1)(a), 8(1)(c), 8(1)(d), 10
Cases Cited:	Attorney General (NSW) v Mirror Newspapers Ltd [1980] 1 NSWLR 374 Gersbach v Gersbach (Supreme Court (NSW), Button J, 19 May 2016, unrep) Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 Rinehart v Welker [2011] NSWCA 403
Category:	Procedural and other rulings
Parties:	Jayne Ellen Gersbach (Plaintiff/Respondent) Rodney John Gersbach (Defendant/Applicant)
Representation:	Counsel: M McAuley (Plaintiff/Respondent) G McNally SC (Defendant/Applicant)   Solicitors: Blake Lawyers (Plaintiff/Respondent) Breene & Breene Solicitors (Defendant/Applicant)
File Number(s):	2013/327902

Judgment

Introduction

1. By way of an amended notice of motion, Mr Rodney Gersbach (the defendant) has sought orders that publication of information be prohibited in relation to the proceedings in which he is being sued by his daughter, Ms Jane Ellen Gersbach (the plaintiff). In the alternative, he seeks what can be described as “pseudonym orders” with regard to the identity of himself and the plaintiff.

2. The defendant relies upon the Court Suppression and Non Publication Orders Act 2010 (NSW) (the Act) and the inherent powers of this Court.

3. The matter came before me in the Duty List on 19 May 2016. At the end of the hearing, senior counsel for the defendant sought an interim order pursuant to s 10 of the Act. I refused that application, and delivered a brief judgment in support of doing so: see Gersbach v Gersbach (Supreme Court (NSW), Button J, 19 May 2016, unrep).

4. Counsel for the plaintiff opposed each of the substantive orders sought by the defendant.

Background

5. To state the background of the matter succinctly, by way of an amended statement of claim of 28 August 2015, the plaintiff has claimed that the defendant sexually assaulted her when she was aged between approximately 4 years and 19 years.

6. The allegations include the defendant forcing the plaintiff to perform oral sex upon the defendant, and the defendant engaging in penile/anal intercourse and penile/vaginal sexual intercourse with the plaintiff.

7. It is also alleged that the defendant forced the plaintiff to perform oral sex upon her own mother, who was physically restrained by the defendant at the time.

8. Separately, it is alleged that the defendant engaged in acts of physical violence against the plaintiff when she was aged between approximately 4 years and 11 years, by way of belting her across the bare buttocks.

9. By way of a second amended statement of particulars of 29 September 2015, the plaintiff has alleged that she has suffered severe emotional and psychiatric injury as a result of the alleged acts of the defendant.

10. An evidentiary statement of the plaintiff filed on 20 May 2015 sets out in detail the allegations that underpin the originating process, and the subsequent injury that she claims was inflicted upon her.

The hearing before me

11. I was given to understand at the hearing of the motion that there is no dispute between the parties that the plaintiff is regrettably suffering from significant emotional and psychological problems. As I have said, the position of the plaintiff is that that damage was occasioned to her by the sexual assaults allegedly committed upon her by her father, along with the separate physical violence that he allegedly inflicted. The position of the defendant is to the contrary: far from the mental and emotional difficulties being caused by sexual and other assaults, in fact those difficulties have led the plaintiff to make allegations against her father that are completely and utterly false.

12. Placed before me in support of the motion was an affidavit of Mr John Breene of 10 March 2016, he being the solicitor who has carriage of the matter on behalf of the defendant. The parties were content for me to approach the material contained in that affidavit as more in the nature of submissions rather than evidence.

13. Also placed before me on the motion by the defendant were two reports of Dr Jonathan Phillips, consultant psychiatrist, of 13 April 2016 and 5 May 2016. In the first of those brief reports, Dr Phillips expresses the opinion that the plaintiff may be suffering from “false memory syndrome”; in the latter of them the psychiatrist seems to be confirming that possible diagnosis. In both documents, Dr Phillips also expresses the opinion that further publicisation of the allegations against the defendant would place him at “considerable psychological risk” (a separate opinion expressed by the psychiatrist about the possible adverse effect of publication upon the plaintiff was not pressed by senior counsel for the defendant).

14. In the second report, Dr Phillips has stated that “any publicity relating to the memories of importance will automatically work to reinforce the aberrant mental process”. In other words, the psychiatrist was expressing the opinion that any false memory that existed would be “entrenched” by further publicity about the proceedings. That opinion formed an important part of the submissions of the defendant, to which I shall turn shortly.

15. Placed before me by the plaintiff were a plethora of psychological and psychiatric reports about the plaintiff. I shall not recount the details of them. As I have said, they do not dispute that the plaintiff suffers from significant difficulties. But in contrast to the opinion of Dr Phillips, they point to the likelihood that the current condition of the plaintiff has been caused by sexual and other violent assaults perpetrated by the defendant.

16. Separately, a report of Dr Robert Gordon, psychiatrist, of 13 May 2016 is to the effect that suppression of the details of what the plaintiff is alleging, far from being of benefit to her, would be positively disadvantageous psychologically, in that the “pressure of secrecy” would persist.

17. A report of Dr Christopher Canaris of 1 September 2014 tendered by the plaintiff shows that, amongst other things, the police do not intend to proceed with criminal charges.

18. Finally, an affidavit of the solicitor for the plaintiff, Mr Paul Blake, shows that there has already been extensive reporting of the allegations made by the plaintiff against the defendant, and that that reporting appears on news and other websites located within Australia and overseas.

Submissions of the defendant

19. As I have said, the application was based largely, though not entirely, upon the Act. In support of that approach, I was invited to s 4 of the Act, which is as follows:

4 Inherent jurisdiction and powers of courts not affected

This Act does not limit or otherwise affect any inherent jurisdiction or any powers that a court has apart from this Act to regulate its proceedings or to deal with a contempt of the court.

20. As one would expect, the part of the application that was founded upon the Act focused upon s 8 thereof. It is as follows:

8 Grounds for making an order

(1) A court may make a suppression order or non-publication order on one or more of the following grounds:

(a) the order is necessary to prevent prejudice to the proper administration of justice,

(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,

(c) the order is necessary to protect the safety of any person,

(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency),

(e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.

21. Particular emphasis was placed by senior counsel for the defendant upon s 8(1)(a) and s 8(1)(c).

22. It was said by senior counsel for the defendant that underpinning the purposes of the Act, and underpinning the application, was a need to ensure that justice be done in the matter. It was submitted that the court should endeavour to achieve justice between the parties: see Rinehart v Welker [2011] NSWCA 403 at [39].

23. In particular, it was said that I would be satisfied that further publicity will lead to further “entrenchment” of what is, at the least potentially, a completely false memory.

24. I was invited to the case of Attorney General (NSW) v Mirror Newspapers Ltd [1980] 1 NSWLR 374 at [38], to support the proposition that publication of statements by persons likely to be called as witnesses can, as a practical reality, interfere with the due administration of justice because of the potential effect on that witness, and indeed other witnesses.

25. Although it was accepted by senior counsel that it would be open to the defendant at the trial to call medical experts to explain the process of entrenchment, nevertheless he submitted that that process could harden the plaintiff in her allegedly false beliefs, with the result that effective cross-examination could become less and less possible.

26. In short, it was submitted that determination of the truth should not be sacrificed at the altar of prurient interest in publicity, much of it salacious.

27. Separately, it was said that the concept of “safety” contained in s 8(1)(c) of the Act should not be read as being limited to physical safety, and that the psychological health of the defendant is, one can infer, at serious risk.

28. Turning from the Act to the question of exercise of the inherent powers of this Court, it was accepted that the Act must surely “cover the field”, to a large degree, in light of the fact that Parliament has created an integrated and comprehensive statutory regime with regard to such questions. As I have said, however, reliance was placed upon s 4 of the Act, and emphasis was placed on s 8(1)(d). It was accepted that here there are no criminal proceedings on foot, and that therefore s 8(1)(d) is not enlivened with regard to any person. But it was said that, quite apart from the Act, I would take into account the need “to avoid causing undue distress or embarrassment” to the defendant.

29. In short, chiefly because of the distinct possibility of entrenchment of a false memory, it was submitted that this is an exceptional case in which a protective order should be made, at the least with regard to the use of pseudonyms.

Submissions of the plaintiff

30. On behalf of the plaintiff, emphasis was placed upon the fact that the grounds for making a suppression order or non-publication order contained in s 8 of the Act are founded upon the concept of necessity, not upon any weaker consideration. My attention was also invited to s 6 of the Act, which is as follows:

6 Safeguarding public interest in open justice

In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

31. It was said that it is noteworthy that Parliament has explicitly called for me to take into account the public interest in open justice, as opposed to any other objective of the administration of justice.

32. Emphasis was also placed upon the psychological advantage to the plaintiff from an end to alleged secrecy, by way of permitting continuing publication.

33. Separately, the point was made that, there having been so much publicity already, all of it available in perpetuity online, a restrictive order to apply for the future would really be futile.

34. Counsel for the plaintiff concluded by respectfully reminding me of a number of cases, some of them pre-dating the commencement of the Act, that place emphasis on the importance of openness in our system of justice: see John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476-477; Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 at [20]; and Rinehart v Welker at [32]-[33].

Determination

35. As was accepted by each of the parties before me, it is impossible for me to determine on any standard of proof where the truth lies. That determination must await the trial, as must the ancillary assessment of the competing opinions of medical experts. That means that is impossible for me to determine whether further publicity would be entrenchment of a false memory or a revelation of a true one.

36. As I remarked to senior counsel for the defendant during discussion between Bench and Bar table, I have approached the application in the context of other aspects of the administration of justice in New South Wales.

37. Although the allegations made by the plaintiff about the defendant are of great gravity, allegations of even greater seriousness are commonly made against persons in the case of criminal litigation. And although there are various statutory protections that apply to alleged victims, it is rare indeed for there to be non-publication of allegations of sexual or other violence against accused persons, or the use of pseudonyms to protect their identities. Publicity about the progress of allegations in the criminal justice system through charge, committal hearing, committal for trial, and pre-trial arraignment is very rarely prohibited, pursuant to the Act or by way of inherent power, in order to protect the psychological health or other interests of an accused person, including avoiding the allegations of a complainant being reinforced by public repetition. And that openness is countenanced by our system of justice even when the guilt or otherwise of an accused person will be determined by members of the community who may have been exposed to such publicity, by way of trial by jury.

38. Of course, those attributes of the criminal justice system are not determinative in this application, made as part of a civil dispute. Nevertheless, I consider that those longstanding aspects of the administration of justice in New South Wales are not irrelevant to my determination of this application, chiefly made pursuant to a relatively new statute.

39. I accept that minimisation of any publicity about the claims of the plaintiff would be desirable from the point of view of the defendant, both psychologically and otherwise (though to be weighed against that is, of course, the psychological health of the plaintiff). But I think there is force in the proposition that, reading the Act in general, and the requirement of necessity in s 8 in particular, one can see that Parliament has imposed a high test for limitations upon the time-honoured principle of open justice. The emphasis given in s 6 of the Act to that same principle bolsters that reading of the Act.

40. Nor does anything in any of the cases to which I was referred detract from that reading of the Act.

41. Finally, in light of the plethora of material already on the internet, I consider that the making of orders sought would very much be an exercise in futility.

42. In short, I do not consider that the defendant has established that it is necessary to prohibit publication about the matter, or to order the use of pseudonyms in such publication, on any of the grounds set out in s 8 of the Act. In particular, I am not persuaded that the possible phenomenon of entrenchment of the allegations means that the test of necessity has been established.

43. Nor do I consider that the defendant has established that I should exercise any inherent jurisdiction to achieve the same outcome.

44. It follows that the motion must be dismissed, and the matter should proceed without either proposed fetter.

Costs

45. The parties were agreed that costs of the motion should follow the event.

Orders

46. I make the following orders:

1. The amended notice of motion of the defendant is dismissed.

2. The defendant must pay the costs of the plaintiff of the proceedings before me.

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Decision last updated: 15 June 2016