Gorman v McKnight (No 2)

[2021] NSWCA 33

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Gorman v McKnight (No 2) [2021] NSWCA 33

Hearing dates:

On the papers

Date of orders:

17 March 2021

Decision date:

17 March 2021

Before:

Bell P
Payne JA
Emmett AJA

Decision:

The appellants’ notice of motion dated 15 January 2021 is dismissed.

Catchwords:

CIVIL PROCEDURE – application for amendment to reasons in Court’s inherent jurisdiction – where reasons extracted the transcript of a recording authorised under the Surveillance Devices Act 2007 (NSW) and tendered in open court – where transcript not subject to a non-publication order or suppression order – whether publication of transcript contrary to s 40 of the Surveillance Devices Act – application dismissed

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW)

Government Information (Public Access) Act2009 (NSW)

Listening Devices Act 1984 (NSW), s 13

Surveillance Devices Act 2007 (NSW), ss 39, 40

Telecommunications (Interception and Access) Act 1979 (Cth), s 63

Cases Cited:

Estate Judd v McKnight; Gammage v Estate Judd, Channell v Estate Judd; McKnight v Estate Judd (No. 2) [2018] NSWSC 462

Estate Judd v McKnight; Gammage v Estate Judd, Channell v Estate Judd; McKnight v Estate Judd (No.4) [2018] NSWSC 1489

Gorman v McKnight [2020] NSWCA 20

Category:

Procedural rulings

Parties:

Trevor Athol Gorman (First Appellant; First Applicant on the motion)
Ian Alexander Duncan (Second Appellant; Second Applicant on the motion)
Christopher John McKnight (First Respondent)
Craig Andrew Channell (Second Respondent)
Aaron Gammage (Third Respondent)

Representation:

Counsel:
C Parkin (Appellants)

Solicitors:
Murphy’s Lawyers Inc. (Appellants)

File Number(s):

2018/339442

Publication restriction:

Nil.

Judgment

1. THE COURT: On 25 May 2018, Garling J dismissed a summons brought by the executors of the Estate of the late Mr Roy Donald Judd seeking the permanent stay or dismissal of three sets of proceedings which had been commenced separately in the Supreme Court of New South Wales: Estate Judd v McKnight; Gammage v Estate Judd, Channell v Estate Judd; McKnight v Estate Judd (No. 2) [2018] NSWSC 462. The plaintiffs in those proceedings, Messrs McKnight, Channell and Gammage, seek damages from the Estate consequent upon the alleged historic sexual assaults committed against them by the late Mr Judd. The plaintiffs were aged between 13 and 17 years at the time of the alleged assaults.

2. This application concerns the contents of an exhibit which was tendered, without objection, by the executors. The exhibit consisted of a transcript of two telephone conversations which were recorded by NSW Police pursuant to a warrant issued under the Surveillance Devices Act 2007 (NSW). At the time the transcript was first marked as an exhibit, Mr Neil QC, who appeared for the Estate, made the following submission:

“I tender, on the basis that we would seek to have treated as confidential, an exhibit … Your Honour will know from the submissions, there is a real issue as to how this is to be treated and in what way it might or might not be able to go into evidence. But, for our part, obviously your Honour has to have it for the purposes of this case but I don’t want to be offending against any legislation. I ask for it to be confidential at least to the parties or the legal advisors at least in this proceeding.”

3. In response to that submission, Garling J made an order in the following terms:

“I direct that the contents of Exhibit A are not to be disclosed by any party to any person except for the purposes of the present proceedings, without further order of the Court.”

4. The primary judge nevertheless set out part of the contents of the exhibit in paragraph 40 of Judd (No. 2). On 1 August 2018, the Estate filed a notice of motion in which it sought the following orders:

“1.   An order that the Court varies the decision of Garling J in [Judd (No. 2)] to remove paragraph 40 pursuant to r 36.16 or r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) or, alternatively, its inherent jurisdiction.

2.   In the alternative to order 1, an order pursuant to ss 7 or 10 of the Court Suppression and Non-Publication Act 2010 (NSW) that the publication or either disclosure of paragraph 40 of the decision be prohibited until further order of the Court.

3.   Costs be reserved.”

5. On 5 October 2018, Garling J withdrew the first judgment and published a corrected judgment excluding paragraph 40, being Estate Judd v McKnight; Gammage v Estate Judd, Channell v Estate Judd; McKnight v Estate Judd (No.4) [2018] NSWSC 1489.

6. The executors of the Estate sought leave to appeal to this Court. The Blue Books filed for the purposes of the application did not contain a copy of the transcript. The index to the Blue Book contained a notation to Exhibit A that the “Appellant does not propose to tender but available on court file”. Mr Newton, who appeared for Mr McKnight, wished to refer to the transcript in his submissions. He emailed a copy to the Registrar of this Court.

7. At the appeal hearing on 25 October 2019, there was the following exchange about reliance on the exhibit for the purposes of the appeal:

“BELL P:   That’s not in the blue book but do you wish to make reference to it for the purposes of the submissions; is that right?

NEWTON:   Yes. And because it was not in the blue book – I think my learned friend’s submission was that it would be in the Court file and available if it was required, and given that I had made a number of specific references to it, I provided it to the Registrar after asking him a question about supplementing the blue book.

BELL P:   And Mr Neil, what’s your position if it was in front of Garling J and Mr Newton wants to refer to it?

NEIL:   We’re only concerned to make the point that it was before Garling J as a confidential exhibit. It should be treated so by the Court here, and some appropriate order should be made in due course for it not to be published, the admissibility or otherwise, and the argument as to whether or not use of it is not permitted – has not been finally decided and could only be decided at a trial.

BELL P:   No, I appreciate the question on admissibility as not being decided but you don’t have any objection to the Court–

NEIL:   No, your Honour, but just to be astute to put our position that it’s confidential.

BELL P:   Does his Honour make an order under the Suppression Act in relation to its confidentiality?

NEIL:   In one respect he did in the sense that his first judgment contained some extracts from it but he withdrew that because he didn’t want them in, so the second judgment was not, and I think as part of the process his Honour wanted no publication.

BELL P:   But that doesn’t translate to an order for confidentiality.

…

BELL P:   Well, does anybody seek some order under the Suppression Act in respect of this document for the purposes of this appeal?

NEWTON:   Certainly not my client, your Honour.

WEINBERGER: No, your Honour.

NEIL:   Your Honour, could we consider that and produce a proposed order if required.”

8. The respondents on the appeal explained that their position was that the exhibit had long before entered the public domain:

“NEWTON: Your Honour, just on the topic, it was always my client’s position that it was in the public domain because it was provided to us by the police in response to a GIPA [Government Information (Public Access) Act2009 (NSW)] application and there is in the blue book a letter from general counsel of the police saying that’s the police’s view in relation to this transcript. They provided it to us on an unrestricted basis.”

9. The issue was returned to later in the hearing and discussed at length:

“BELL P:   Thank you. Now, can I just ask you, because I want to be crystal clear about the telephone intercept transcript. From my part, I don’t see why it should be treated as confidential. I just need reminding about the – I think Mr Neil took us to the order below, which is simply that it, ‘not be disclosed by any party to any person except for the purposes of the present proceedings without further order of the Court.’ I don’t think that, in terms, as Payne JA put, is an order in the Court Suppression Orders Act. Do you press for some [order], and if so on what basis?

NEIL:   Thank you, your Honour. I press for the same order; I ask this Court to make the same order that his Honour made … because we wish to preserve our position at trial, as his Honour records our argument …: that we still maintain that this material is protected information, and we don’t want it to be said that we waived our point by allowing the matter to go into the public domain. There’s one argument that if something is in the public domain, we lose the argument about protected information. I just don’t want it to be held against us that we haven’t protected our position.

…

NEIL:   It’s prima facie because it was taken under a Surveillance Act warrant; it becomes what’s called protected information. It can’t be used except for restricted purposes, but if it gets into the public domain, that protection is lost.

PAYNE JA:   You’ve tendered it in open Court, though, haven’t you?

NEIL:   No, but on a specific basis that it be confidential and, indeed, the copy of the transcript that we have which shows that it was originally before Rein J on judicial advice has got ‘confidential’ on it and we understood that was the one that was tendered before his Honour, and we understand that ought to be in the Court file.”

10. The executors were given seven days to seek a suppression order and set out a very clear statement of the basis on which it was sought:

“BELL P:   … If you, on reflection and revisiting the Act, think there’s a basis for some order, you could put that in a note and make it precisely what order you seek and a very clear statement of the basis on which you seek it.

NEIL:   Certainly, your Honour. Could I ask for seven days, your Honour?

…

NEIL:   I’ll have to revisit it, your Honour. We may seek to put something in within a week or not.

BELL P:   Yes. If you let us know one way or the other and if you do put something in of substance the respondents have an opportunity to respond within seven days.”

11. No such order was sought by the Estate.

12. On 19 February 2020, this Court granted leave to appeal but dismissed the appeal with costs: Gorman v McKnight [2020] NSWCA 20. The judgment of Bell P at paragraph 30 extracted a passage from the telephone conversations which were recorded by NSW Police pursuant to a warrant issued under the Surveillance Devices Act and which had been released by the police in response to a Government Information (Public Access) Act 2009 (NSW) request.

13. On 15 January 2021 (almost a year after the decision of this Court was published), the executors filed a notice of motion seeking the following orders:

“1   That paragraph 30 of the reasons of the Court of Appeal in Gorman v McKnight [2020] NSWCA 30 (the Reasons) be withdrawn. [1]

2   In the alternative to (1), that paragraph 30 of the Reasons be redacted.

3   Costs.

4   Such other order as the Court of Appeal thinks fit.”

1. The media neutral citation is incorrect. It should have been [2020] NSWCA 20.

14. This was the first communication from the executors about the subject matter of the Court’s reasons published almost a year prior. The Court made directions for the filing of submissions by the executors in support of the orders sought.

15. No sufficient explanation for the egregious delay in seeking relief has been provided, save that it was a matter overlooked by Mr Wrench, the executors’ solicitor. The executors submitted that the delay in bringing the application ought not bear upon the Court’s discretion to provide relief.

16. The executors submitted that:

1. the transcript was provided to this Court “on a confidential basis” and ought not to have been published by the Court; and

2. in any event, the publication of the transcript by this Court is prohibited by s 40 of the Surveillance Devices Act.

17. The executors submitted that the transcript is subject to an “undischarged suppression order made by Garling J”. It was submitted that the transcript was provided to this Court on the basis that it was “subject to a non-publication order”.

18. The information contained in the transcript was “protected information” for the purposes of the Surveillance Devices Act: see s 39(a). Section 40 of that Act prohibits the use, communication or publication of protected information. It relevantly provides:

40 Prohibition on use, communication or publication of protected information

(1)   A person is guilty of an offence if—

(a)   the person intentionally, knowingly or recklessly uses, communicates or publishes any protected information, and

(b)   the person knows that, or is reckless as to whether, the information is protected information, and

(c)   the person knows that, or is reckless as to whether, the use, communication or publication of the information is prohibited by this section.

Maximum penalty—Imprisonment for 2 years.

Note—

Under section 16 of the Crimes (Sentencing Procedure) Act 1999, a court may impose a fine on a body corporate that commits this offence or an offence under subsection (2).

(2)   A person is guilty of an offence against this subsection if the person commits an offence against subsection (1) in circumstances in which the person—

(a)   intends to endanger the health or safety of any person or prejudice the effective conduct of an investigation into a relevant offence, or

(b)   knows that, or is reckless as to whether, the disclosure of the information—

(i)   endangers or will endanger the health or safety of any person, or

(ii)   prejudices or will prejudice the effective conduct of an investigation into a relevant offence.

If the offence against subsection (1) involves information obtained from the use, in accordance with section 50A, of body-worn video by a police officer, each reference in this subsection to a relevant offence includes a reference to any offence.

Maximum penalty—Imprisonment for 7 years.

(3)   Subsections (1) and (2) do not apply to—

(a)   the use, communication or publication of—

(i)   any information that has been disclosed in proceedings in open court, or

(ii)   any information that has entered the public domain, or

…

19. There is no express prohibition on giving in evidence in proceedings prohibited information as compared with, for example, s 63 of the Telecommunications (Interception and Access) Act 1979 (Cth). Section 63(1) provides:

63 No dealing in intercepted information or interception warrant information

(1)   Subject to this Part and section 299, a person shall not, after the commencement of this Part:

(a)   communicate to another person, make use of, or make a record of; or

(b)   give in evidence in a proceeding;

lawfully intercepted information or information obtained by intercepting a communication in contravention of subsection 7(1).

20. Another example of a prohibition upon admissibility was contained in s 13 of the now-repealed Listening Devices Act 1984 (NSW) which was the predecessor to the Surveillance Devices Act:

13 Inadmissibility of evidence of private conversations when unlawfully obtained

(1)   Where a private conversation has come to the knowledge of a person as a result, direct or indirect, of the use of a listening device in contravention of section 5:

(a)   evidence of the conversation, and

(b)   evidence obtained as a direct consequence of the conversation so coming to the knowledge of that person,

may not be given by that person in any civil or criminal proceedings (including proceedings for or in connection with the grant of bail).

…

21. The executors submitted that the exceptions in s 40(3)(a) of the Surveillance Devices Act do not apply in this case because there are “suppression orders” in place. This is incorrect. No “suppression orders” under the Court Suppression and Non-publication OrdersAct2010 (NSW) have ever been made, nor any other orders having that effect.

22. The exhibit was tendered by the executors without restriction save that it was described at the time of its tender as “confidential”. No order was ever made by Garling J “supressing” the contents of the exhibit. His Honour’s order that “the contents of Exhibit A are not to be disclosed by any party to any person except for the purposes of the present proceedings, without further order of the Court” did not prevent the respondents referring to and relying upon the exhibit for the purposes of the appeal, much less prohibit this Court from considering the contents of the exhibit or referring to the contents of the exhibit in its judgment.

23. The executors appealed to this Court and did not seek to argue that Garling J should have made an order under the Court Suppression and Non-publication Orders Act or should have made a suppression order under any other suggested power. Whatever the merits of the executors’ submission that they wish to preserve the argument that the requirements of s 40(3)(a) of the Surveillance Devices Act have not been met, there was no issue raised for this Court to consider about that topic by the appellant’s notice of appeal.

24. Despite that not being a matter raised by the notice of appeal, upon being referred to the exhibit, the Court made it pellucidly clear that it would entertain an application for an order under the Court Suppression and Non-publication Orders Act if made within seven days of 25 October 2019. No such application was ever made. Indeed, as matters presently stand, the executors seek an order that a judgment of the Court be redacted, but do not seek an order under the Court Suppression and Non-publication Orders Act in support of that suggested redaction.

25. In the events that transpired, the respondents were permitted to rely upon the exhibit for the purposes of the appeal and the Court was bound to consider the contents of the exhibit and permitted to refer to its contents in its judgment.

26. No sufficient reason has been shown for the Court to withdraw paragraph 30 of its judgment published over 12 months ago.

Conclusion and orders

27. For the foregoing reasons the Court makes the following orders:

1. The appellants’ notice of motion dated 15 January 2021 is dismissed.

**********

Endnote

Decision last updated: 17 March 2021