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,…