JA v State of New South Wales

[2024] NSWSC 1367

Supreme Court

New South Wales

Medium Neutral Citation:

JA v State of New South Wales [2024] NSWSC 1367

Hearing dates:

27 September 2024

Date of orders:

29 October 2024

Decision date:

29 October 2024

Jurisdiction:

Common Law

Before:

Faulkner J

Decision:

See [23]

Catchwords:

COURTS AND JUDGES – Application for suppression and non-publication orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) – Prohibition on publication already enlivened by s 15A of the Children’s (Criminal Proceedings) Act 1987 (NSW) – necessity – appropriateness of further orders – application refused

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Court Suppression and Non-publication Act 2010 (NSW), ss 7, 8

Firearms Act 1996 (NSW), s 74A

Cases Cited:

MA v State of New South Wales [2024] NSWSC 1366

Category:

Procedural rulings

Parties:

JA (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
D Tang (Plaintiff)

Solicitors:
Justice and Equity Centre (Plaintiff)
Wotton + Kearney (Defendant)

File Number(s):

2024/00129662

Publication restriction:

Section 15A Children (Criminal Proceedings) Act 1987 (NSW): The plaintiff and her children are not to be identified except in accordance with that Act.

JUDGMENT

1. These proceedings are brought by a Sydney resident who I will refer to as the plaintiff. The plaintiff has made an application for suppression orders under
   s 7(1) of the Court Suppression and Non-publication Act 2010 (NSW). I will refer to that statute as the CSNO Act. The orders are alternatively sought pursuant to the inherent jurisdiction of the Court.

2. The defendant neither consents nor opposes the application.

3. The application was heard at the same time as a corresponding application in MA v State of New South Wales [2024] NSWSC 1366 because the parties have common representation and there is no material difference in the issues raised. Like the application in MA v State of New South Wales, the application in these proceedings raises a question about the interaction between the CSNO Act and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). I will refer to that statute as the CCP Act.

4. For the reasons given in MA v State of New South Wales, the orders sought in these proceedings are not necessary and the application is to be dismissed.

Background

5. The plaintiff brings these proceedings against the State of New South Wales pursuant to a Statement of Claim filed on 8 April 2024. The plaintiff alleges that between 15 October 2021 and 14 June 2023 police officers frequently visited her home in regional Australia. She has particularised 109 occasions where the visits occurred, each occasion particularised by date, time and (almost always) the names and rank of the visiting police officers. The visits were frequent. Some of the visits occurred in the middle of the night. The plaintiff contends that at some stage, possibly at the outset and in any event subsequently, the visits became a trespass for which the plaintiff now seeks compensation from the State.

6. In addition to the 109 visits referred to in the preceding paragraph, the plaintiff alleges that on four occasions between 2 December 2021 and 7 December 2022 police came to home and searched the premises “purportedly” pursuant to s 74A of the Firearms Act 1996 (NSW). Section 74A permits police to search premises in certain circumstances.

7. The State has not yet filed a defence. Nonetheless, it may be anticipated that the facts and circumstances surrounding any police visits and searches will be an issue which the Court will have to consider.

8. The context in which it is alleged the visits occurred is that since October 2021 one of the plaintiff’s children has been residing with her whilst on bail for offences alleged to have been committed by him. The son is a child in the sense that, at all material times, he has been under the age of 18.

9. The name of the child, his age, the grants of bail in October 2021 and subsequent bail variations are all matters which the plaintiff has alleged in the Statement of Claim.

10. As the pleadings currently stand, the plaintiff’s allegations about her son’s bail may not strictly be necessary for the plaintiff’s cause of action. Her essential case is that the police have come onto her property without her consent, express or implied. The identity of the people living at the plaintiff’s property and the circumstances in which they are living there may not be relevant to the plaintiff’s case. However, the Statement of Claim contemplates that the police will contend that they attended the property for “bail compliance checks”, in which case the grants of bail, the circumstances in which they occurred and the conditions upon which they were made are likely to become issues in the case.

11. In those circumstances, the application should be approached on the basis that all the matters alleged by the plaintiff are property alleged in circumstances where she seeks to vindicate rights which she asserts against the State.

12. As the pleadings currently stand, the plaintiff’s allegations about the charges brought against her children and their bail may not strictly be necessary for the plaintiff’s cause of action. Her essential case is that the police have come onto her property without her consent, express or implied. The identity of the people living at the plaintiff’s property and the circumstances in which they are living there may not be relevant to the plaintiff’s case. However, the Statement of Claim contemplates that the police will contend that they attended the property for “bail compliance checks”, in which case the grants of bail, the circumstances in which they occurred and the conditions upon which they were made are likely to become issues in the case.

13. In those circumstances, the application should be approached on the basis that all the matters alleged by the plaintiff are property alleged in circumstances where she seeks to vindicate rights which she asserts against the State.

Application in these proceedings

14. The plaintiff makes the application for suppression and non-publication orders under the CSNO Act pursuant to a Notice of Motion filed on
    28 August 2024. The orders sought in the Notice of Motion were overtaken by revised orders handed up at the hearing of the application. The effect of the orders is essentially that the names of the plaintiff and her son generally be replaced with pseudonyms. Orders were also sought in relation to redaction of certain documents.

15. The bases upon which the orders were sought are the Court’s power under
    s 7 of the CSNO Act or, alternatively, in the inherent jurisdiction of the Court.

16. There is evidence of media interest in these proceedings.

17. The sole reason relied upon for the orders is to ensure compliance with s 15A of the CCP Act.

Determination

18. The submissions relied upon by the plaintiff are the same as those relied upon by the plaintiff in MA v State of New South Wales.

19. In my judgment in MA v State of New South Wales [2024] NSWSC 1366 have summarised the plaintiff’s submissions. I have also set out the two relevant statutory regimes under the CSNO Act and the CCP Act and the authorities about the statutory provisions are to be applied in a case like this. There is no material difference between the two cases. This is also a case where direction may be made by the Court which will mean that orders under the CSNO Act are not necessary.

20. For the reasons set out in MA v State of New South Wales the orders sought in the plaintiff’s Notice of Motion filed on 28 August 2024 should not be made, either because the plaintiff has not established one of the permitted grounds specified in s 8(1) of the CSNO Act or because the orders are inappropriate and ought not be made in the exercise of the Courts discretion under s 7. For the same reasons, the orders set out in the plaintiff’s Short Minutes of Order which were handed up at the hearing ought not be made.

21. As in MA v State of New South Wales the Plaintiff’s alternative reliance on the inherent jurisdiction of the Court does not warrant a different result.

22. As in MA v State of New South Wales the plaintiff has demonstrated the appropriateness of the Court making a number of directions in the terms set out below.

Order and direction

23. The Court orders that:

1. The plaintiff’s Notice of Motion filed on 28 August 2024 be dismissed.

2. Costs of the motion be costs in the cause.

24. The Court further directs that:

1. The name of the proceedings be changed to JA v State of New South Wales;

2. The following references are to be adopted by the parties for the purpose of conducting these proceedings:

1. for the plaintiff, JA;

2. for the plaintiff’s son, JB.

3. If so advised, the plaintiff has leave to file an Amended Statement of Claim by 10 November 2024, such leave being restricted to amendments to implement the preceding direction; and

4. Any application by a non-party for access to the Court file is not to be granted without the parties first being notified and being allowed an opportunity to be heard.

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Decision last updated: 29 October 2024