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 AJADecision: 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: 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:
Solicitors:
C Parkin (Appellants)
Murphy’s Lawyers Inc. (Appellants)
File Number(s): 2018/339442 Publication restriction: Nil.
Judgment
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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.
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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,…
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- AGLC
- Gorman v McKnight (No 2) [2021] NSWCA 33
- Case
- [2021] NSWCA 33
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court of Appeal was whether the inclusion and publication of the transcript of the authorised recording within the Court's reasons for judgment constituted a contravention of section 40 of the *Surveillance Devices Act 2007* (NSW). This required the Court to consider the scope and application of section 40 in circumstances where evidence obtained under the Act had been admitted and published in open court without any specific non-publication or suppression orders being in place.
The Court of Appeal dismissed the application, reasoning that section 40 of the *Surveillance Devices Act 2007* (NSW) prohibits the disclosure of information obtained under a surveillance device warrant, but this prohibition is subject to exceptions. Crucially, the Court found that the transcript in question had been tendered in open court and was not subject to any non-publication or suppression order. In such circumstances, the publication of the transcript within the Court's reasons for judgment did not contravene section 40. The Court applied the principle that evidence admitted and published in open court, without restriction, can be included in the Court's reasons.
Consequently, the appellants’ notice of motion dated 15 January 2021 was dismissed.
Orders
Orders of the court
The appellants’ notice of motion dated 15 January 2021 is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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