Harris (pseudonym) v Secretary, Department of Communities and Justice (No 2)

[2022] NSWCA 10

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Harris (pseudonym) v Secretary, Department of Communities & Justice (No 2) [2022] NSWCA 10

Hearing dates:

Written submissions 2 November 2021

Date of orders:

11 February 2022

Decision date:

11 February 2022

Before:

Meagher JA, Gleeson JA and Brereton JA at [1]

Decision:

In the published version of the first judgment:

(1) the name of the applicant where it appears in [3] is to be redacted;

(2) the applicant is to be given the pseudonym Harris; and

(3) footnotes 1 and 2 be redacted.

Catchwords:

CIVIL PROCEDURE – Judgments – Suppression and non-publication – Application for redaction – Possible identification of children through identification of parent – Possible identification of children through reference to related proceedings – Order for use of pseudonym in judgment

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), s 105

Cases Cited:

Harris (pseudonym) v Secretary, Department of Communities & Justice [2021] NSWCA 261

Category:

Consequential orders

Parties:

Harris (Applicant)
Secretary, Department of Communities & Justice (First Respondent)
RA (Second Respondent)
DH (Third Respondent)
RH (Fourth Respondent)
AH (Fifth Respondent)
Children’s Court of New South Wales (Sixth Respondent)

Representation:

Counsel:
P D Lange (Applicant)
B J Dean (First Respondent)
E M Stolier (Fifth Respondent)

Solicitors:
New South Wales Crown Solicitor’s Office (First and Sixth Respondents)
Legal Aid NSW (Third Respondent)
Rafton Family Lawyers Parramatta (Fifth Respondent)

File Number(s):

2021/136677

Publication restriction:

Children and Young Persons (Care and Protection) Act 1998 (NSW), s 105, prohibits the publication of the name of, or any information or other material that identifies or is likely to lead to the identification of, a child or young person, who is mentioned or otherwise involved in any proceedings before the Children’s Court or in any non-court proceedings, or who is or has been under the parental responsibility of the Minister or in out-of-home care.

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division; Court of Appeal

Citation:

[2021] NSWSC 519; [2021] NSWCA 101

Date of Decision:

15 April 2021; 27 May 2021

Before:

Sackar J; McCallum JA

File Number(s):

2021/136677

Judgment

1. THE COURT: On 29 October 2021, the Court delivered judgment dismissing the proceedings (“the first judgment”). ^[1] On the evening of 28 October, in response to being notified that judgment was to be delivered by AVL and would subsequently be published on CaseLaw, an email was received from the applicant which included the following:

“Please do not publish the judgement. I will be making submissions on Monday for the case to be totally redacted, the identifying locations, names and information has caused new problems in our neighbourhood by neighbours ….”

1. [2021] NSWCA 261.

2. On the morning of 29 October, an email was received from the applicant’s wife, supporting his request. As a result, when delivering judgment, the following additional order was made:

“THE COURT FURTHER DIRECTS THAT any party seeking to make submissions for the judgment to be redacted or a non-publication order other than the restriction noted in the judgment, lodge with my Associate by close of business on Tuesday 2 November their submissions and proposed redactions if any, and any submissions in reply be lodged with my Associate by close of business Friday 5 November 2021.”

3. The ”restriction noted in the judgment” was the following notation under the heading “Publication restriction” on the coversheet:

“Children and Young Persons (Care and Protection) Act 1998 (NSW), s 105, prohibits the publication of the name of, or any information or other material that identifies or is likely to lead to the identification of, a child or young person, who is mentioned or otherwise involved in any proceedings before the Children’s Court or in any non-court proceedings, or who is or has been under the parental responsibility of the Minister or in out-of-home care.”

4. Submissions were subsequently received from counsel for the applicant, seeking that the published judgment refer to the applicant, as well as the second to fifth respondents (being the applicant’s wife and their children), by pseudonyms, and that those pseudonyms would not simply be the initials of the various parties.  In addition:

“Finally, it is to be noted that there is reference to similar material in the judgments of Sackar J. and McCallum JA to which this Court’s judgment refers. It will, therefore, be necessary for the applicant to seek similar orders in relation to those judgments.”

5. The first respondent, the Secretary of the Department of Communities & Justice, does not wish to be heard in relation to the redaction/non-publication application and submits to such order as the Court might make. 

6. A further email was received from the applicant on 10 October 2021, which included the following:

“It has been brought to my attention that there are other judgments online that are presently endangering the safety and wellbeing of our children. I ask the court to remove all judgement until we have the opportunity to present evidence of actions by parties known to our children that are using the same information online that has been published by the court to traumatise our children. Our children should not find information about themselves related to police abuse of power and the use of loaded language by the department and police to abuse the courts processes.

…

Please remove all publications related to me as it connects my children and their mother with identifying information and it's not safe.”

7. This was followed by a further email from the applicant’s wife, supporting the applicant’s request and seeking time to provide further information showing “that there are present dangers if the new judgment is published and the previous judgments are not removed”.

8. No application was made for any pseudonym, nor for any non-publication order, at the hearing. The matter was heard in open court.

9. All the first judgment shows in substance is that the applicant’s application for leave to appeal failed. The judgment refers, briefly, to the course of the proceedings in the lower courts, including in the Children’s Court, and then in this Court. It does not refer, at all, to the circumstances of the children, or the underlying issues in the Children’s Court proceedings. It deals with legal issues only. The applicant is named, other than on the cover sheet, once only, in par [3]. Two of the children are mentioned, in passing, using two initials only to do so, and only in the context of certain courses taken by their separate representatives. It does not contain any such “identifying locations, names and information” as is referred to in the applicant’s email.

10. As has been noted, the judgment bears an annotation drawing attention to the prohibition, contained in Children and Young Persons (Care and Protection) Act 1998 (NSW), s 105, on publication of information tending to identify the children.

11. In those circumstances, it is not apparent how publication of the first judgment unmodified would expose the children to any risk of harm. It may be seriously doubted that any further order is necessary or appropriate.  However, as the children might be identified through identification of their father the applicant, and as it is conceivable that the first judgment could lead to or assist in the identification of related proceedings which might enable identification of the children, it is appropriate that for their protection the applicant be given a pseudonym.

12. Given the pseudonym to be used, the constellation of initials and children involved is not so striking as to identify the family.

13. However, the references in the footnotes to the judgments of Sackar J and McCallum JA would frustrate and compromise the purpose of a pseudonym, and enable identification of the children. Accordingly, those footnotes should also be redacted.

14. Accordingly, in the published version of the first judgment:

1. the name of the applicant where it appears in [3] is to be redacted;

2. the applicant is to be given the pseudonym Harris; and

3. footnotes 1 and 2 be redacted.

15. It is not for this Court, as presently constituted, to make such orders in respect of the judgments of other judges and other courts. Any application in respect of other judgments should be made, if at all, to the relevant judge by motion.

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Endnote

Decision last updated: 11 February 2022