Jane Doe v Fairfax Media Publications

[2018] NSWSC 1996

Supreme Court

New South Wales

Medium Neutral Citation:

Jane Doe v Fairfax Media Publications Pty Limited & Anor [2018] NSWSC 1996

Hearing dates:

26 February - 1 March 2018

Decision date:

21 December 2018

Jurisdiction:

Common Law

Before:

Fullerton J

Decision:

1. Verdict for the defendants.
2. The plaintiff is to pay the defendants’ costs.

Catchwords:

STATUTORY INTERPRETATION - Crimes Act 1900 (NSW) s 578A - meaning of the word “likely” - “real and not remote” chance, or more probable than not.

 

STATUTORY INTERPRETATION - Crimes Act 1900 (NSW) s 578A - whether mens rea required or whether offence is an offence of strict liability

 

STATUTORY INTERPRETATION - Crimes Act 1900 (NSW) s 578A - whether breach of s 578A confers a cause of action for damages for breach of statutory duty - constituent elements of an action for damages for breach of statutory duty - legislative intention to confer private right to sue for damages

  EQUITY - claim for equitable compensation for breach of confidence - identification of the confidential information - whether the information had the necessary “quality of confidence” - whether the information was imparted in circumstances importing an obligation of confidence.

Legislation Cited:

Casino Control Act 1922 (NSW)
Children (Care and Protection) Act 1987 (NSW)
Children (Criminal Proceedings) Act 1987 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Children and Young Persons Act 1989 (Vic)
Children's Court of Western Australia Act 1988 (WA)
Civil Liability Act 2002 (NSW)
Corporations Act 1989 (Cth)
Crimes (Personal and Family Violence) Amendment Bill 1987 (NSW)
Crimes (Serious Sex Offenders) Act 2006 (NSW)
Crimes Act 1900 (NSW)
Criminal Code Act 1924 (Tas)
Criminal Procedure Act 1986 (NSW)
Dangerous Goods Regulation 1978 (NSW)
Evidence Act 1929 (SA)
Evidence Act 1995 (NSW)
Industrial Relations Act 1988 (Cth)
Judicial Proceedings Reports Act 1958 (Vic)
Liquor Act 1912 (Qld)
Overhead Line Construction Maintenance Regulations 1962 (NSW)
Scaffolding and Lifts Act 1912 (NSW)
Serious Sex Offenders Monitoring Act 2005 (Vic)
Strata Titles Act 1973 (NSW)
Taxation Administration Act 1963 (Cth)
Wrongs Act 1958 (Vic)

Cases Cited:

Alan Belford Jones; Harbour Radio Pty Ltd; Nationwide News Pty Ltd v R [2008] NSWDC 8
Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209
Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWCA 430; (2012) 295 ALR 348
Attorney General (NSW) v Winters [2007] NSWSC 1071
Attorney General v Greater Manchester Newspapers (Unreported, England & Wales High Court, Queen’s Bench Division, Dame Elizabeth Butler-Sloss P, 4 December 2001)
Attorney-General for the State of New South Wales v Winters [2007] NSWSC 1071
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63
Australian Securities Commission v Nomura International PLC (1998) 89 FCR 301
Bailey v Hinch [1989] VR 78
Boughey v R (1986) 161 CLR 10; [1986] HCA 29
Briffett v Crown Prosecution Service [2001] EWHC Admin 841; [2002] EMLR 12
Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24
Channel Seven Adelaide Pty Ltd v Stockdale-Hall [2005] SASC 307
Chugg v Pacific Dunlop Limited (1990) 170 CLR 249
Commissioner of Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5
David Syme & Co v Canavan (1918) 25 CLR 234; [1918] HCA 50
Gardiner v State of Victoria [1999] VSCA 100
Giller v Procopets [2008] VSCA 236; (2008) 24 VR 1
Griffin v Marsh (1994) 34 NSWLR 104
Hawthorne (Department of Health) v Morcam Pty Ltd (1992) 29 NSWLR 120
He Kaw Teh v The Queen (1985) 157 CLR 523
Howe v Harvey (2008) 20 VR 638; [2008] VSCA 181
Jane Doe v Australian Broadcasting Commission [2007] VCC 281
Jane Doe v Fairfax Media Pty Ltd [2016] NSWSC 1294
JD Bell (Calool) Pty Ltd v Shortland County Council (1991) 74 LGRA 398
Johns v Australian Securities Commission (1993) 178 CLR 408; [1993] HCA 56
King v Goussetis (1986) 5 NSWLR 89
Lubrano v Proprietors of Strata Plan No 4038 (1993) 6 BPR 97
Marshall v Prescott [2015] NSWCA 110
Martin v Western District of Australasian Coal and Shale Employees Federation (1934) 34 SR (NSW) 593
McDonald (t/as BE McDonald Transport) v Girkaid Pty Ltd [2004] NSWCA 297
Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643
Missingham v Shamim [2012] NSWSC 288
Nakhl Nasr v State of New South Wales; George Nasr v State of New South Wales [2007] NSWCA 101
O’Connor v SP Bray Ltd (1937) 56 CLR 464; [1937] HCA 18
O’Riordan v The Director of Public Prosecutions [2005] EWHC 1240
Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21; 265 ALR 28
Preston v Star City Pty Ltd [1999] NSWSC 1273
Proudman v Dayman (1941) 67 CLR 536; [1941] HCA 28
R v Lindsay Ronald Jensen [2007] NSWDC 15
R v Lindsay Ronald Jensen, District Court, Murrell DCJ, 18 December 2006
R v W [1998] 1 NZLR 35
R v West Australian Newspapers Ltd, Ex Parte Keating on behalf of the Attorney-General for Western Australia (Full Court of the Supreme Court of Western Australia, 19 June 1997, unreported)
Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403
RJE v Secretary to the Department of Justice (2008) 21 VR 526; [2008] VSCA 265
Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157
Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1990) 22 FCR 73
Soutter v P&O Resorts Pty Ltd [1998] QCA 051; [1999] 2 QdR 106
Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397; [1967] HCA 31
Streetscape Projects (Australia) Pty Ltd v City of Sydney [2013] NSWCA 2
Tillman v Attorney General (NSW) (2007) 70 NSWLR 448; [2007] NSWCA 327
Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331
TSL v Secretary to the Department of Justice (2006) 14 VR 109; [2006] VSCA 199
Von Lieven v Stewart (1990) 21 NSWLR 53
Waters v Pacific Publications Pty Ltd [1999] NSWSC 366
Waugh v Kippen (1986) 160 CLR 156
Western Australia v West Australian Newspapers Ltd and Anor; ex parte James Andrew McGinty MLA, Attorney General for Western Australia (2005) 30 WAR 434; [2005] WASCA 161
Whittaker v Rozelle Wood Products Ltd (1936) 36 SR (NSW) 204
X v Bedfordshire County Council [1995] 2 AC 633
XX v Nationwide News Pty Ltd [2010] NSWDC 147

Texts Cited:

Gatley on Libel and Slander (12th ed, 2013)

Category:

Principal judgment

Parties:

Jane Doe (Plaintiff)
Fairfax Media Publications Pty Limited (First Defendant)
Michael Bachelard (Second Defendant)

Representation:

Counsel:
K Smark SC / S Chrysanthou (Plaintiff)
P Gray SC / L Barnett (Defendants)

  Solicitors:
Mark O'Brien Legal (Plaintiff)
Banki Haddock Fiora (Defendants)

File Number(s):

2016/278384

Judgment

1. HER HONOUR: By Statement of Claim dated 16 September 2016 the plaintiff seeks an order for damages, including aggravated and exemplary damages, for breach of a statutory duty said to be conferred by s 578A of the Crimes Act 1900 (NSW), by the publication of two articles in the Sydney Morning Herald and on the website associated with that newspaper on 17 and 18 June 2016 (respectively, the first and second publication of the articles). The first defendant is the publisher of the newspaper in its paper and digital format. The second defendant is a journalist employed by the first defendant and the author of the articles. At the time of the hearing, the digital version of the article remained available for download although part of the article, as originally published, has been redacted.

2. The first and second articles, entitled respectively “Secrets of the Brethren” and “Tony McCorkell Reveals Secrets of the Wealthy Christian Sect Exclusive Brethren”, reference the Royal Commission into Institutional Responses to Child Sexual Abuse (“the Royal Commission”) and, in that context, the sexual abuse of the plaintiff and her sister by Mr Lindsay Jensen, a senior member of the Plymouth Brethren Christian Church (“the Plymouth Brethren”), as examples of the sexual abuse of some children born into the Church and the efforts to conceal the abuse by the Church hierarchy.

3. The plaintiff also seeks equitable compensation for what she contends is a breach of confidence owed to her by the defendants by the publication of the articles, and declaratory relief for breach of a suppression (non-publication) order made by Knight DCJ on 13 April 2007 following the trial of Mr Jensen on sexual assault charges in which the plaintiff was the complainant.

4. The plaintiff commenced the proceedings by the pseudonym “Jane Doe” (Jane Doe v Fairfax Media Pty Ltd [2016] NSWSC 1294). To preserve her anonymity, the witnesses upon whose evidence she relied will be referred to according to their relationship to her or by their initials, or both.

The proceedings in summary

Breach of statutory duty

5. The plaintiff submitted that while s 578A of the Crimes Act makes no express provision for a complainant who is identified by the publication of identifying material to bring a civil action for damages, the principles of statutory construction dictate that a right of action should be inferred. The plaintiff placed particular reliance upon the decision of Hampel J in Jane Doe v Australian Broadcasting Commission [2007] VCC 281, which although having no precedential force, was said by the plaintiff to reflect an orthodox application of the principles of statutory construction to s 4(1A) of the Judicial Proceedings Reports Act 1958 (Vic), a provision directed to achieving the same policy outcomes as s 578A of the Crimes Act, although expressed in different terms.

6. Section 578A of the Crimes Act provides as follows:

(1)   In this section: 

"complainant" has the same meaning as in Division 1 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986 .

"matter" includes a picture.

"prescribed sexual offence" has the same meaning as in the Criminal Procedure Act 1986 .

"publish" includes:

(a)   broadcast by radio or television, or

(b)   disseminate by any other electronic means such as the internet.

(2)   A person shall not publish any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant.

Penalty: In the case of an individual--50 penalty units or imprisonment for 6 months, or both; in the case of a corporation--500 penalty units.

(3)   This section applies even though the prescribed sexual offence proceedings have been finally disposed of.

(4)   This section does not apply to:

(a)   a publication authorised by the Judge or Justice presiding in the proceedings concerned,

(b)   a publication made with the consent of the complainant (being a complainant who is of or over the age of 14 years at the time of publication),

(c) a publication authorised by the court concerned under section 15D of the Children (Criminal Proceedings) Act 1987 in respect of a complainant who is under the age of 16 years at the time of publication,

(d)   an official law report of the prescribed sexual offence proceedings or any official publication in the course of, and for the purposes of, those proceedings,

(e)   the supply of transcripts of the prescribed sexual offence proceedings to persons with a genuine interest in those proceedings or for genuine research purposes, or

(f)   a publication made after the complainant's death.

(5)   A Judge or Justice shall not authorise a publication under subsection (4) (a) unless the Judge or Justice:

(a)   has sought and considered any views of the complainant, and

(b)   is satisfied that the publication is in the public interest.

(6)   The prohibition contained in this section applies in addition to any other prohibition or restriction imposed by law on the publication of any matter relating to prescribed sexual offence proceedings.

(7)   Proceedings for an offence against this section shall be dealt with summarily before:

(a)   the Local Court, or

(b)   the Supreme Court in its summary jurisdiction.

(8)   If proceedings for an offence against this Act are brought before the Local Court, the maximum penalty that the Local Court may impose on a corporation is 50 penalty units.

7. The defendants submitted that as a matter of statutory construction no private right to sue for breach of the statutory duty in s 578A is conferred. The defendants sought to distinguish the decision of Hampel J on a number of bases, not least that the decision reflected an erroneous approach to the construction question. The defendants submitted that the guidance that is afforded by a line of High Court authority, and the application of settled principles in a range of decisions at first instance and on appeal, including in this Court, will necessitate a finding that no civil right to sue is conferred from the terms of s 578A.

8. Fundamental to the success of the plaintiff’s claim for common law damages for breach of the statutory duty in s 578A (assuming a right to sue is to be inferred) is her contention that the articles either identified her as a complainant in prescribed sexual assault proceedings (as defined in s 3 of the Criminal Procedure Act 1986 (NSW)) or was likely to lead to her identification as a person so described. The defendants submitted that even were the Court satisfied that a right to sue is conferred by the terms of s 578A, the plaintiff was neither identified nor likely to have been identified in either of the articles. The defendants further submitted that even if the articles did identify the plaintiff or were likely to do so, she had failed to establish that the publication of the identifying material was intentional and, because the Court would find that mens rea was a constituent element of the civil wrong upon which that claim for damages is based, her claim for damages would fail for that further reason.

Breach of confidence and breach of suppression orders

9. With regard to the plaintiff’s claim for equitable compensation for breach of confidence, the defendants deny the plaintiff was owed a duty of confidence such as would, or might, ground her claim for equitable relief and, further, even were they subject to any applicable duty or obligation of confidence, the publication of the articles did not constitute a breach of any such duty as nothing of a “confidential nature” was published.

10. Finally, the second defendant denied breach of the suppression (non-publication) order and submitted that even were breach established, declaratory relief should be refused in the exercise of the Court’s discretion.

Damages

11. The plaintiff’s claim for common law damages for breach of statutory duty and her claim for equitable compensation for breach of confidence was ultimately advanced referable only to what she described as the hurt, distress, embarrassment, humiliation, shame and guilt she experienced as a result of the publication of the articles. Her claim for damages for psychiatric or psychological injury and economic loss were not pressed.

The evidence

12. The plaintiff’s affidavit of 27 March 2017 was read, subject to the defendants’ objection to those paragraphs where she nominates a number of people (not otherwise called as witnesses) who told her they read the articles or one of them, subsequent to which they claim to have identified her as one of the children who had been sexually abused by Mr Jensen. In the course of the hearing I resolved the objection adverse to the plaintiff and her affidavit was amended accordingly. (The reasons for that ruling appear at [47] to [59].)

13. Affidavits from the following people were also read (again after amendment to reflect that ruling): the plaintiff’s husband of 27 March 2017; TP (a relative, by marriage, of the plaintiff) dated 12 April 2017; JK (a family friend of the plaintiff) dated 13 April 2017; NK (a family friend of the plaintiff) dated 13 April 2017; AH (a former neighbour and now friend) dated 13 April 2017, and the plaintiff’s general practitioner, Dr Hourigan, dated 13 April 2017.

14. The second defendant did not give evidence. He relied upon a number of documentary tenders, inclusive of extracts of a book he wrote entitled “Behind the Exclusive Brethren” first published in 2008 and subsequently in 2009 and 2010, and a number of newspaper articles where the Jensen trial was reported upon, all of which pre-date the articles the subject of these proceedings.

The Articles

15. The print version of the article entitled “Secrets of the Brethren” was published in the Good Weekend magazine on 18 June 2016. The online article entitled “Tony McCorkell reveals secrets of the wealthy Christian Sect Exclusive Brethren”, was published on the Sydney Morning Herald website on 17 June 2017. The content of the articles is identical.

16. The articles read as an exposé of the Plymouth Brethren as an insular Christian religious sect currently under the leadership of Mr Bruce Hales, the seventh leader of the Church founded in Plymouth, England, in 1829. As the second defendant described it in the article, the Brethren shun public scrutiny as surely as radios, TVs and voting are trappings of “worldly society”. (“Worldly society” is the nomenclature used by the Brethren to refer to civil society). The article suggests that it is this edict that explains the preparedness of the Church, under the leadership of Mr Hales, to cover up sexual abuse of children by its members, and its determination to avoid public scrutiny of the sexual abuse of children within the Church and to conceal abuse notified to it.

17. The article draws heavily on the insights of Tony McCorkell who was born into the Church but who left as a child when his father was exiled. As a young adult Mr McCorkell returned to the Church (as he described it, to the dismay of his parents) and was subsequently engaged as a consultant to help to improve the Church’s reputation and to defend it against accusations that it had ignored or concealed child sexual abuse by its members. Mr McCorkell also detailed occasions when, under orders from the Church hierarchy, he worked with leaders of the Church community to pay the expenses of victims in exchange for their silence. The article includes the following:

In his three years, however, McCorkell personally "dealt with" six claims of child sexual abuse, and says now, "I can't prove it, but I'd say there's a lot more of it that we don't hear about." In each case, he says, the Brethren's preference was to keep the case in-house. Sometimes, acting on Hales's orders, McCorkell worked with local leaders to pay the bills of victims when they needed it, in return for their silence. Sometimes [Hales] dismissed their cases as a "family matter". Twice, as the media circled, he urged abusers to make admissions to police so the Church could be publicly seen to be doing the right thing.

In each case, the priority was protecting what the Brethren calls "the position". This is a notion that refers both to the loyalty demanded of church members to its peculiar, separatist theology, and to Hales, as well as to the physical property and assets owned by the church. Easing the suffering of victims, many still locked with their abusers inside a claustrophobic, rule-bound community, came a distant second.

18. At the time he was interviewed by the second defendant, Mr McCorkell had severed all ties with the Plymouth Brethren.

19. The article goes on to refer specifically to “two sisters” who had been abused by Mr Lindsay Jensen and whose abuse the Church hierarchy had attempted to cover up. Mr Jensen was referred to as a church elder known to the Brethren for what was described in the article as his “lustfulness”. The children are not named or described. It was common ground in the proceedings that the plaintiff and her younger sister are the “two sisters” referred to. The sexual abuse the plaintiff and her sister suffered whilst living at the home of the Jensens was not detailed or described in terms. What was made clear was that the home in which they were abused was where they had been sent by the Church after their father was exiled from the Church due to his homosexuality and after their mother was subsequently injured in an accident.

18. In the opening paragraph of the article the plaintiff’s initial disclosure of the abuse and her subsequent forced retraction are set out as follows:

Late one night, a frightened girl whispered a terrible secret into her mother’s ear. It was about the man in whose house she was living – an elder of the Christian sect to which they all belonged.

But if the girl thought telling her mum would make it stop, she had not reckoned on the power of the Exclusive Brethren.

Just days after her disclosure in mid-2002, the girl’s mother brought her back to the man’s house in a NSW regional town. The elder’s wife took the child into the room where it had happened. Then the interrogation began. For hours the woman questioned the little girl. She made her act out the attacks. “She wanted me to show her what [her husband] had done to me, she wanted me to demonstrate,” the girl later told a judge.

So long did it go on that the child’s own mother left the room to sleep.

Later still, the perpetrator himself, Lindsay Jensen – nearly two metres tall, weighing 100 kilograms, rich, pious, respected in his religious community – came in and confronted the girl himself.

“My memory is that I said to [her], ‘Just tell the truth … tell me what I am supposed to have done’,” Jensen told a court in 2005.

Finally, the girl relented to the pressure and signed a note on a little lined page saying that she had lied. “I have always thought of the relationship between Lindsay and I as a father/daughter relationship,” she wrote in childish script, “and I was glad for it because I needed some sort of father.

“The things that I said that happened, I don’t believe they happened at all.”

21. The note was tendered as part of Mr Jensen’s defence in his criminal trial before Knight DCJ in 2005, marked as an exhibit and retained on the Court file before it was accessed by the second defendant. A photograph of the note in the Court file was also included in the articles with the plaintiff’s name and her grandfather’s name redacted. The publication of the photograph of this note is relied upon by the plaintiff in support of her claim for equitable compensation for breach of confidence.

22. Further into the article the second defendant refers to another note the plaintiff was forced to write:

On plaint sheets of A4 paper on her court file, amid crossings-out and false starts, we can read how the girl was punished. Here is her written pledge to Jensen and his wife not to talk about “problems with me” to any body outside their family. Here is an account of her being teased by other Brethren children, and of Jensen’s wife getting “cross with me and so did Lindsay”.

“I want to be different”, the girl wrote, “and not cause trouble for people”.

Among her punishments, known as “consequences”, was to copy out the “ministry” of a former Brethren leader on the subject of lies. “The Lord is getting rid of liars, one after another. He is just disposing of liars”, the girl wrote out in June 2002. The punishments went on for months.

Then in May 2003, a year after the girl’s disclosure, her little sister whispered her own secret. Lindsay Jensen had also been sexually molesting her for well over a year: in the same bedroom where he had fondled her sister, and in his car as his own children slept.

The only difference was that, in the later words of her older sister, the younger child’s suffering had been “five times worse”.

Neither sister had known, nor spoken to the other about what had happened.

The younger girl was not even 10.

23. While these handwritten notes were referred to in the article, they were not reproduced. The plaintiff does not complain that the quotation from these handwritten notes constituted a breach of confidence.

24. The article goes on to recount the events that followed the plaintiff’s disclosure of the abuse to the authorities (described in the article as “the worldly authorities”) and, after the criminal proceedings were initiated, how Mr McCorkell was enlisted by the Church to minimise the media’s exposure of the Church and to deflect their attention from the proceedings, including by the threat of litigation. Finally, the article recounts the abuse the plaintiff and her sister suffered following their disclosure of the sexual abuse to the authorities and the culmination of the criminal proceedings against Mr Jensen:

THE TWO young girls in the regional NSW town broke all the rules. They did something nobody had done before: they themselves reported to the "worldly" authorities what had happened to them. To the horror of Hales and the entire closed society, they pursued their complaints right through the court system.

But the pressure on them was intense. After the younger sister had come forward, two senior Church women had interviewed them both: the elder girl once, the younger twice. They had been pressed for every detail, their stories relayed back to the Sydney leadership. According to McCorkell, this is where it would normally have ended: the perpetrator probably would have been "kicked out for immorality" for a short time and the girls "shipped off to the US [where they had relatives] and nobody would have been any the wiser".

Instead, the girls' mother sought help from a non-Brethren counsellor. The counsellor notified the NSW Department of Community Services, which made its own inquiries. The mother was denounced immediately. "It would be better for a millstone to be hung around your neck and for you to be cast into the depths of the sea rather than go to the police," one woman told her.

In August 2003, Jensen was "shut up" – excluded from Brethren society – over the allegations. Serious pressure immediately came from the local community to reinstate him. The girls were labelled "sinful liars". People threw rocks at them, egged their house. Groups of young men would bash or rock cars they were travelling in, or drive fast at them as they walked. An elder came from Melbourne specifically to yell at the girls' mother.

It was a painfully public campaign. It often happened in the grounds of their church. Everyone, even the smallest boys, would taunt and torment the girls. No one stepped in to help them. The girls began avoiding the meetings, earning more rebukes. But still their mother refused to take their case to the police.

"Throughout the discussions, [the mother] spoke of the influence the Church has on her life and that of her children," a social worker noted. "[She] stated, in front of both [girls], that she is of the belief that the law and legal system is something that you abide by but that you don't bring into your life even if the police are required. This is also the belief of the Church."

Soon it became clear that Jensen would be reinstated to fellowship. The girls both wrote desperate letters to Bruce Hales, begging him not to do it: "I cannot understand why you are bringing Lindsay into fellowship because he has ruined me," the younger girl wrote.

"She has lost faith in the Brethren," the elder girl wrote of her little sister. "She talks of … killing herself."

In December 2003, Jensen was restored to the Church. In a timeline later produced by local Brethren and released by McCorkell, the Church said it was because there was "no substantial witness" to the assaults. Jensen promptly went to a meeting at the Brethren school, where he remained a trustee. The older girl saw him there. The message could not have been clearer: in this world, fatherless girls and husbandless women had no voice; and they would never report the matter to police. But, two days later, they did just that.

Unlike the Brethren, the worldly authorities showed the girls kindness and respect. Even so, through the long hours spent making their statements, pursuant to the rules of their sect, both refused food and drink.

More indignities were to come. Their police statements were distributed to the elders of the Church to scrutinise and judge. The Brethren briefed a law firm to wrest guardianship of the older girl away from her mother. A relative stole a passport from their house in an attempt to remove her overseas.

The younger girl was nicknamed "Jezebel". Brethren surrounded her in public, chanting "Lindsay lover" and "harlot". She moved to another NSW town with her mother, but the stories followed her, and the bullying was unrelenting. She quit school and finished her education via correspondence.

In 2005, Jensen faced trial in the case of the older girl. His defence relied in part on the coerced note she had signed. As her case was being heard, a supporter of Jensen made 11 violent threats, including bombings and assaults, against the victims and the court itself. Jensen and the "bomber" were both found guilty and jailed.

In 2007, Jensen was sentenced to a second jail term, this time on five counts that included having sexual intercourse with a child under 10. In total, he was jailed for about four years. The Brethren promptly hired a lawyer in an attempt to have the evidence in the proceedings suppressed.

Jensen still denies any wrongdoing and his wife has stuck by him.

25. It is the plaintiff’s case that the articles identified her, or were likely to have led to her identification, as one of the two children sexually abused by Mr Jensen because of what were said to be the following particulars of identification in par 10 of the Statement of Claim:

A.

(i) The plaintiff grew up amongst the Brethren community in the regional town of Albury, New South Wales.

(ii) The plaintiff has a younger sister who was nicknamed “Jezebel”.

(iii) The plaintiff’s father ruled himself out of the Brethren community as he was gay and had left the plaintiff’s mother for another man.

(iv) Following her father’s departure, the plaintiff (and her sister) went to live with Lindsay Jensen and were under his care.

B. The following identifiers of the plaintiff were published in the first publication:

(i) “The two young girls in the regional NSW town”.

(ii) “The girls own father had ruled himself out of their communion by committing the worst possible sin in brethren eyes – he was gay and had left their mother for another man”.

(iii) “She and her little sister were left on and off living in the house Lindsay Jensen”.

(iv) “The younger girl was nicknamed “Jezebel”. Brethren surrounded her in public chanting “Lindsay lover” and “harlot”.

(v) “The younger girl was not even 10”.

(vi) The plaintiff’s Note as published in the first publication referred to her relationship with Lindsay Jensen as a “father/daughter relationship”, that Lindsay Jensen had “always been like a father” to her and that she needed “some sort of father”.

C. Further, the first defendant has published, and continues to publish online the article entitled “Sect man jailed for sex abuse of girl” dated 17 February 2007 in which it is stated that the sexual assault by Lindsay Jensen of his then nine year old victim took place in Albury.

26. It was common ground that the information in the articles was derived, in part, from material contained within the District Court file accessed by the second defendant under an order of the Registrar of the District Court on 7 January 2016 (see later at [36] and following). It was the defendant’s case that it is also open to infer that in publishing the articles the second defendant also drew on other sources, including an interview with the children’s father and other research.

27. The defendant submitted, correctly, that there was no evidence adduced at trial to support proof of 10A(ii), 10B(iv) or 10C.

28. In the plaintiff’s outline of submissions it was submitted that the following “identifying facts about the plaintiff” were published. This was not the case the plaintiff alleged in the pleadings. There was no attempt to amend the pleadings to reflect the case outlined in submissions.

(a) She was a member of the Exclusive Brethren when she was assaulted.

(b) She was living in the house of the assailant when the assault occurred.

(c) the assailant Lindsay Jensen was an elder of the Church;

(d) she told her mother about the assaults in mid-2002.;

(f) the plaintiff wrote a note saying she had lied about the assaults.

(g) the plaintiff had a little sister, who was also sent to live with the Jensens.

(h) the plaintiff’s father was gay and left her mother for another man;

(i) the plaintiff’s mother was an alcoholic and used prescription drugs;

(j) the plaintiff and her sister were neglected and had to steal food;

(k) the plaintiff’s younger sister, not even 10 at the time, was also molested;

(l) the plaintiff and her sister were questioned by two senior Church women;

(m) the plaintiff had relatives in the US;

(n) the plaintiff’s mother was denounced by the Brethren for speaking to the Department of Community Services.

(o) the plaintiff’s house was “egged” and rocks thrown at cars she was in;

(p) an elder of the church from Melbourne came to yell at the plaintiff’s mother.

(q) the plaintiff and her sister were taunted in church;

(r) Jensen became a trustee in 2003 of the Brethren School that the plaintiff attended.

(s) an attempt was made to remove the plaintiff from her mother’s guardianship;

(t) the plaintiff’s mother and sister moved towns;

(u) the plaintiff’s sister met with Bruce Hales 5 times in 3 years.

The trial of Mr Jensen and the making of the non-publication order

29. The plaintiff’s evidence at the trial before Knight DCJ concerning the manner in which she was assaulted by Mr Jensen (including her evidence of uncharged sexual assaults), and her emotional and physical reaction to the assaults, was the subject of suppression orders made by Knight DCJ on 13 April 2007. His Honour also made non-publication orders in respect of other material which was annexed to an affidavit sworn by Jessica Purches, solicitor, which detailed Mr Jensen’s attack on the plaintiff’s character during the trial. Publication of the fact of the attacks was not the subject of his Honour’s orders.

30. The non-publication orders are as follows:

(a) the Court vacates all non-publication orders previously made.

(b) The Court orders that the publication of the evidence of [Jane Doe] given in the trial of R v Lindsay Ronald Jensen (where [Jane Doe] was the victim) describing the particular manner in which she was assaulted by the offender in respect to each offence, and other uncharged sexual conduct be forbidden.

(c) The Court orders that the publication of the evidence of [Jane Doe] given in the trial of R v Lindsay Ronald Jensen (where [Jane Doe] was the victim) describing her emotional and physical reactions to the offender’s sexual conduct be forbidden.

(d) The Court orders that the publication of the material annexed to the affidavit of Jessica Purches sworn 10 April 2007 be forbidden.

(e) The Court orders that the publication of the evidence given in the trial of R v Lindsay Ronald Jensen of the attacks made on the personal character of [Jane Doe] (the victim in that trial) be forbidden but that this order shall not prevent the publication of the fact of those attacks being made.

Other publications

31. On the front page of the Melbourne Age on 30 December 2006 an article entitled “Brethren bid to hide sex assaults” appears. The second defendant is the author of that article. The same article appeared on 30 December 2006 on the front page of the Sydney Morning Herald.

The Exclusive Brethren sect has tried for almost four years to cover up the sexual assaults of two girls, protecting the abuser, ostracising the victims and blaming their mother.

The perpetrator, a senior respected and rich Brethren elder in a country town, was found guilty in a Sydney court two weeks ago of eight charges, including the digital rape of one girl of eight and the repeated indecent assault of her older sister.

…

None of the parties in the recent sexual assault case can be identified for legal reasons, but the distraught father of the two girls has told The Age that in 2003, before the case was reported to police, the girls’ mother came under intense pressure by the Brethren not to report the assault to police.

…

According to the father, one of the Brethren’s most senior Australian members also told the victims’ mother that she should take the blame for the sexual assaults.

During this time, the wife of the sexual predator was allowed to interview the older sister for several hours. Towards the end of that session, the abuser himself also joined the interview. Under pressure, the girl was forced to retract her complaints and issue a written apology to her abuser and his wife.

“It was a coerced admission that it was because of my own daughter’s naughtiness and sinfulness that she had said such a thing”, the father said.

The retraction and apology was presented as evidence for the defence during the man’s trial, but rejected by the jury.

32. On 16 January 2007 Mr Jensen was sentenced by Murrell SC DCJ, after a trial in which the plaintiff’s sister was the complainant, to imprisonment for an effective term of 5 years with a 3 year non-parole period. The sentencing judgment (which I shall assume was read in open court) included the following:

[1] On 18 December 2006, a jury found the offender guilty of four counts of indecent assault on a child under ten years old, and one count of sexual intercourse with a child under ten. Each of the incidents occurred between 28 February 2002 and 1 January 2003, when the victim was nine years old.

[2] In an earlier trial before Judge Knight, a jury found the offender guilty of 3 offences against the victim's older sister. Those offences occurred between 31 January 2002 and 16 May 2002, when the victim's sister was more than ten years old. The offender has not yet been sentenced for those offences.

[3] The maximum available penalty for an offence of indecent assault on a child under 10 is 10 years' imprisonment. The maximum available penalty for an offence of sexual intercourse with a child under 10 is 20 years' imprisonment. Because of the age of the subject offences, no standard non parole period applies.

[4] …

[5] In early 2002, the victim's mother suffered a serious injury. During the remainder of 2002, while their mother was receiving treatment or convalescing, the victim and, on occasions, her sister, stayed at the offender's house for periods of a week or longer. Each of the incidents occurred while the victim was staying with the offender's family, ie while the offender had immediate responsibility for the victim's well-being. The offender was someone whom the victim "really trusted". The offender and the victim would exchange hugs "just like you would hug your mum or dad".

Her Honour’s sentencing reasons are available for download at

33. On 13 April 2007 Mr Jensen was sentenced by Knight DCJ to an effective additional term of 12 months on the sentence imposed by Murrell SC DCJ for the criminal assaults on the plaintiff. No published judgment or transcript of the sentencing proceedings was tendered in the proceedings.

34. In the weekend edition of the Sydney Morning Herald of 14-15 April 2007 the following article entitled “More jail time for sex abuser” was published (a day after the suppression order issue by Knight DCJ was lifted permitting publication of the name of Mr Jensen):

A former member of the Exclusive Brethren was sentenced yesterday to another year in prison.

The Herald can now reveal that Lindsay Ronald Jensen had committed sexual offences against two young girls who were also members of the Brethren when he was in a position of trust towards the girls.

The Exclusive Brethren had initially investigated complaints from the girls, aged nine and 12, and had excluded the Jensen family from the community.

But attempts were made to discredit the older girl, and the Brethren hierarchy dismissed the complaint and temporarily readmitted the Jensens.

The older girl saw Jensen at her school and raised the alarm there, sparking a police investigation.

…

Jensen had already been sentenced in January to at least three years’ jail for his more serious offences.

Yesterday the judge added another year to his sentence for three counts of aggravated indecent assault, making him eligible for parole in December 2010.

35. The book entitled “Behind the Exclusive Brethren” was first published in 2008 with two subsequent reprints in 2009 and 2010. Chapter 6 of the book is entitled “Albury”. In the context of describing the troubled nature of the Albury Brethren and the tensions that have been exposed, the second defendant said as follows:

… a living case-study of what happens when a religious group tries to police the boundaries of its faith and to maintain strict separation from sin by relying on judgmentalism and heavy-handed regulation.

He goes on to describe a scandal that:

… was breaking out in Albury that would divide the Brethren community in two. It would result in two men being jailed, three families damaged, and multiple children denied contact with their fathers. It would also lead to an accusation that the sect’s world leader had tried to cover up the sexual abuse of two young girls.

Lindsay Jensen was a senior and wealthy Brethren businessman and a trustee of the sect’s local private school. He was well liked, but was not considered a sect elder, partly because he had the reputation of being lustful towards the women of the flock. In the words of Brethren spokesman Tony McCorkell, he was regarded as ‘a bit loose-moralled’.

Despite this, in 2002, a dreadful series of events led to two vulnerable young girls being sent to live in his house. The story began in 1999 when the girls’ father left the family home, unable any longer to hide the fact that he was homosexual. In Brethren demonology, this is the most terrible sin, the subject of distaste and revulsion – being, as Bruce Hales put it, ‘unnatural against the anatomy’. Brethren medical doctor Mark Craddock, one of Hales’ personal physicians, later described the father as having a ‘sordid history of infidelity involving a long-term alternative relationship’, and also being ‘a loser by any decent person’s standards’.

Despite the distaste with which the Brethren regarded him, this man had managed, after great effort, to maintain some access to his children, with fortnightly visits being organised at the home of the children’s grandparents. Other Brethren were present at these four-hour visits, the father says, and it ‘certainly was a hostile environment’.

But in March 2002 the girls’ mother suffered a terrible accident, in which both her thigh bones were broken, putting her in a wheel-chair and rendering her incapable of looking after her children. Even though the father was still in Albury, he was not considered by the Brethren to be a candidate to care for the children. Instead, they were sent to a local family, the Jensens. Two months later, in May, the elder of the two girls, who was 12, just turning 13, told her grandfather that her host had sexually abused her.

But the Brethren immediately dismissed the complaint because, according to the official version, the girl had a ‘tendency to make up stories’, and Jensen denied it. To complicate the situation, the girls’ mother, despite her invalid state, had also had an affair with Jensen.

In two separate trials in 2005 and 2006, Jensen was convicted on eight charges of sexual assault of the two sisters, including one count of sexual intercourse without consent, and sentenced to five years’ jail, with a non-parole period of three years. The sentencing judge, Gay Murrell, commented that the relationship between victim and abuser was ‘brought about because of membership of the church’.

But getting to the point where the justice system was able to do its work was a long, tortuous, and psychologically scarring experience for the girls and their mother, who needed to thread their way through a Brethren community and hierarchy that was determined to prevent the story coming out. (It must be emphasised in this account that Jensen continues to maintain his innocence; his wife and family are standing by him.)

When the older girl first reported the crime, so deep was the disbelief of her that Jensen’s wife was allowed to interview her, with Jensen himself entering the room towards then end of the session. They extracted from the girl an admission that she had lied, and that her naughtiness and sinfulness were to blame for her false allegations. And there the situation rested for a full year, even though the father, who was still in contact with his daughters, noticed ‘by their change of behaviour that something was wrong’.

The second defendant accesses the Court file

36. On 7 January 2016 the second defendant applied to the District Court seeking access to the Court file relating to the trial proceedings of Mr Jensen. The request for access was made on the following basis:

I am a journalist writing in the public interest in light of the recent revelations from the Royal Commission into institutional responses to child abuse. There is an institutional component to this case, as both the perpetrator and the victim were members of the Exclusive Brethren religion, and the girls were living with the perpetrator’s family as a result of a religious ruling from the church’s leadership.

37. On 4 February 2016 access was granted by Assistant Registrar West entitling the second defendant to inspect the indictment, exhibits, transcripts of evidence and any record of a conviction or order. No order was made (or sought) for photocopy access. The second defendant was advised of the terms of the order for access by the District Court’s media liaison officer. That email reads as follows:

Hi there Michael,

Good news! The Registrar has considered your application for docs in R v Lindsay Ronald Jensen – 2006/00015329 file.

You have been granted access to inspect the following documents:

Indictment

Exhibits

Transcripts of evidence

Any record of a conviction or order.

Access is granted subject to strict compliance with the non-publication order made on 13 April 2007 (see scanned document), noting that all non-publication orders made prior to that date have been vacated.

The file is available for inspect from the District Court Registry at the Downing Centre on Level 3. Ask for [court staff].

38. The second defendant sent the following email in response:

That is indeed good news, [media liaison officer].

Thank you very much.

I’ll arrange travel to Sydney in the next week or so.

I guess I’ll need a couple of days?

Michael

39. The media liaison officer responded:

Hi there,

Yes, there’s a bit to go through. You are able to take notes but you can’t take copies or take photos of the file so it will be the old fashioned note taking.

…

40. In his filed defence in the proceedings, the second defendant admitted that he photographed part of the file using his mobile phone, including one of the handwritten notes in which the plaintiff was forced by Mr Jensen to recant the allegations of sexual abuse. The full text of the handwritten note (in photographic form) was reproduced in both of the published articles. It reads as follows:

29 – 5 – 2002

I have always thought of the relationship between Lindsay and I as a father/daughter relationship before [grandfather’s name] mentioned anything about it.

Lindsay has always been like a father to me since Dad went, and I was glad for it because I needed some sort of father.

The things that I said that happened, I don’t believe they happened at all.

[Plaintiff’s name]

41. In May or June 2016, Mr O’Brien, the solicitor for the plaintiff, was supplied with a draft of the article proposed to be published. It was not provided to him by the first or second defendant. On 9 June 2016 Mr O’Brien advised the second defendant that the Church regarded the (draft) article as containing information which would lead to the identification of the plaintiff and that, were that to occur, s 578A of the Crimes Act would be contravened. Mr O’Brien also contended that the articles were defamatory of the Plymouth Brethren and Bruce Hales. The draft article was in similar although not identical terms to the published articles; the differences being predominantly stylistic. The articles as published do not appear to have been altered to remove or qualify those parts of the article which Mr O’Brien contended identified or were likely to identify the plaintiff.

The plaintiff’s awareness of the publications of the articles

42. In the plaintiff’s affidavit she refers to being readmitted to St John of God Hospital (SJOG) at Burwood in May 2016 to address a chronic dependency on alcohol. She was admitted to the same hospital in May 2014.

43. She was discharged on Saturday 17 June 2016, unaware of the publication of the article in The Good Weekend that day. The plaintiff gave evidence that upon discharge she felt “really confident and [was] looking forward to a fresh start and a shiny new life” and to maintaining her sobriety. She went on to say that she felt confident enough to be able to attend Church events where alcohol was served and to resume her membership of the Church.

44. On 18 June 2016 she was informed by her husband of the publication of the article the previous day.

45. She gave evidence that upon reading the article online, she felt nauseous. She went on to say:

I was very shocked by what I was reading – it was about me – but at this point I took a deep breath and felt compelled to continue to read.

…

I then got to the section of the article which contained a copy of a note that I had been forced to write as a child by Lindsay Jensen [the note]. I said to [my husband] words to the effect of “that’s my handwriting, that’s the note they made me write”. I felt like I had been hit by a bus. I ran to the bathroom and stood over the sink heaving as if to vomit.

…

After reading the article, I felt “panicky” and my breathing was rapid. The article did not specifically name me but there were references to me and my younger sister … which I believe would have made it easy for someone to know it was about me.

46. The plaintiff’s stated belief that she had been identified as the child (or one of the children) referred to in the article was only relied upon on the issue of damages. She also gave evidence that various people with whom she spoke after the articles were published identified her as one of the children referred to in the articles.

The “identification” objection

47. This evidence, and the evidence of various witnesses to similar effect, was relied upon by the plaintiff as relevant to the issue of identification essential to proving both breach of the prohibition against publication in s 578A(2) in support of her common law claim for damages of material identifying a complainant and as one aspect of her claim for equitable compensation. The evidence was also relied upon in the assessment of damages for both causes of action in that it was submitted that what others said caused her to feel humiliated, anxious, extremely inadequate and helpless. There was no objection to the evidence on the issue of damages. The defendants objected to the plaintiff giving evidence of conversations with people who she says identified her as one of the children in the articles as a source of proof that the articles in fact identified her or that they were capable of so doing. The defendants also objected to nominated paragraphs in each of the affidavits of witnesses who deposed to a belief that other people to whom they had spoken or who had spoken to them had identified the plaintiff as the child (or one of the children) referred to in the articles.

48. It is unnecessary to extract in full the evidence to which objection was taken. The plaintiff’s evidence and the witnesses whose evidence she relied upon for this purpose were largely consistent in form. For illustrative purposes, in the case of the plaintiff’s affidavit (after amendment as a consequence of unrelated objections) the paragraphs the subject of objection read as follows:

41   In the evening, I received a call from my cousin [name] who said words to the effect of “I just read the Article … you must be going through hell. I just wanted to let you know I’m thinking of you”. [Name] only knew that I had been sexually assaulted but it was clear to me from what she said that she knew that the Article was referring to me.

…

47   On either the Saturday or Sunday night, I texted Dr Daniel Murray. I wrote to him words to the effect of “have you seen the good Weekend?” He replied with words to the effect of “yes, I did. I recognised that the article was about you. Oh my goodness… there are no words to describe this. Worst timing ever”.

…

63   A friend of mine … also said to me words to the effect of “I have read the Article and it is absolutely shocking. How can they do it to you? Is it even legal? How are you coping? I would be in a mental home if I were you.”

…

65   At one of the [group therapy] sessions which post-dated the Article’s publication, I saw [AL], another attendee. A is from outside the church and knew nothing more about my childhood past than what I referred to in that previous group session. A came up to me and said words to the effect of “I read the Article and recognised you right away. How are you coping? How is your mother? Is the church helping you?” I was ashamed and embarrassed.

…

80   The Article did not specifically name me. However, since publication, the following people identified me from the Article:

[names omitted].

81   The following people (residing overseas) also identified me from the Article. Whilst I cannot recall the exact discussion with them, I do recall that they said words to me words to the effect of “I saw the Article about you and it is terrible”.

[names omitted].

82   The following people identified me from the article:

[names omitted].   

83   The following people said to me words to the effect of “I saw the article and know it was about you”:

[names omitted].

49. The plaintiff submitted that this evidence was admissible on two bases. The first was that the identification evidence was relevant for a non-hearsay purpose pursuant to s 60 of the Evidence Act 1995 (NSW). By way of example, in the context of par 41 of the plaintiff’s affidavit (extracted above), the testimonial content of the telephone call was not relied upon for proof of the asserted fact (that the declarant was thinking of the plaintiff in the belief that she was going through hell), but as proof of her/his belief that the articles in fact identified the plaintiff, there being no other rational explanation for the conversation in the terms she deposed to other than that the person she was speaking to, having read the article, had in fact identified her as one of the two children sexually abused. This was said to be illustrated even more clearly by par 63 of the plaintiff’s affidavit (also extracted above) in that the plaintiff does not rely on what was said to prove the asserted facts that the declarant read the article and found it “shocking”, but that on reading the article the declarant identified the plaintiff as its subject.

50. In support of the admissibility of this evidence for a non-hearsay purpose (namely to prove the fact that the material in the article led a number of people to identify her as one of the two sisters abused by Mr Jensen) the plaintiff relied upon the observations of Samuels JA in Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643. In that case his Honour held that in an action for defamation, and in circumstances where the plaintiff was not otherwise identified by the terms of the publication, the belief of a witness that a defamatory article referred to the plaintiff is admissible to establish the range or extent of the identification of the plaintiff as the person defamed.

51. The plaintiff submitted that although that case concerned an action in defamation, by parity of reasoning the evidence under challenge here is also admissible as original evidence, albeit, in this context, to prove the fact that the material in the article lead a number of people to identify the plaintiff as one of the sisters abused by Mr Jensen, irrespective of whether the Court came to a different view as to whether the article identified the plaintiff or was likely to lead to her being identified.

52. In Mirror Newspapers Ltd v Fitzpatrick, Samuels JA said, at 656, the following:

There is authority for the admissibility of evidence of declarations made out of court for the purpose of identification. In Cook v Ward (1830) 6 Bing 409; 130 ER 1338, evidence was held admissible that the plaintiff had been publicly ridiculed after publication of the libel. Tindal CJ (at 415; 1340) said that the evidence was properly admitted “as identifying the subject of the libel”; and Park J (at 416; 1341) observed that the evidence had been admitted “to identify the Plaintiff as the person to whom the ridicule of the libel attached”. In the earlier case of Du Bost v Beresford (1810) 2 Camp 511; 170 ER 1235, the plaintiff sued the defendant for the value of a painting entitled “Beauty & the Beast” which the defendant had cut in pieces on the ground that it was a scandalous libel upon his sister and her husband. In the course of the trial Lord Ellenborough held that the declarations of the spectators, while they looked at the picture in the exhibition room, were evidence to show that the figures portrayed were meant to represent the defendant's sister and brother-in-law. In Jozwiak v Sadek [1954] 1 WLR 275; [1954] 1 All ER 3, Ormerod J, relying upon Cook and Du Bost, admitted evidence of statements made out of court and of anonymous telephone calls to the plaintiff, to identify the plaintiff with the libel; and it appears that evidence of declarations out of court were admitted in aid of the innuendo in Hough v London Express Newspaper Ltd [1940] 2 KB 507.

There are cases in this Court to the same effect, upon which the respondent relied, ie Steele v Mirror NewspapersLtd [1974] 2 NSWLR 348; World Hosts Pty Ltd v Mirror Newspapers Ltd [1978] 1 NSWLR 189 and Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225. In Steele (at 369, 370) Hutley JA (in a judgment with which upon this point I expressed my general agreement) held that the evidence of witnesses that other persons in the country town where the plaintiff lived had declared that they believed the defamatory article to refer to the plaintiff (whom it did not name) was admissible to establish the extent of the identification of the plaintiff with the person whom the article described. It is possible that this ruling was strictly obiter, since there was direct evidence of identification not under challenge which was sufficient to carry the case to the jury. However this may be, it was applied by the court (Moffitt P, Hutley and Glass JJA) in World Hosts, where it was held that evidence of statements made out of court was admissible to establish the extent of the identification of the plaintiff as the subject of the article: see at 202, 207 and 209. In Andrews the Court (Hutley, Glass and Mahoney JJA) applied Steele and World Hosts and admitted hearsay evidence of identification: see at 234, 248 and 264.

53. Continuing at 657, his Honour said:

Apart from authority the evidence — say that concerning Miss Rowntree's criticisms — was, in my view, admissible in principle. It was not hearsay, but original evidence of the declarant's state of mind upon learning of what she took to be the respondent's deceitful conduct. “A person's declarations of his contemporaneous state of mind or emotion are admissible as evidence of the existence of such state of mind or emotion”. Such testimony may represent a recognized exception to the hearsay rule, or may be received as an application of the doctrine of res gestae; in either case it is original evidence of the facts stated. It may be that the correct rationale is that the statements made are admissible evidence of conduct from which the existence of a compatible state of mind may be inferred. (References omitted) (Emphasis added.)

54. The second basis upon which the plaintiff submitted that the evidence was admissible was pursuant to the exception in s 66A of the Evidence Act (that section codifying the “recognised exception” to which Samuels JA referred in the preceding paragraph), in that the plaintiff’s cousin’s belief that the plaintiff was the subject of the article (the fact inherent in what she said as reported in par 41 of the plaintiff’s affidavit) was evidence of her cousin’s state of mind, and that was also a source of admissible evidence to prove that the plaintiff was identified in the articles.

54. The defendants submitted that the entirety of the evidence the subject of the identification objection was inadmissible as irrelevant to the issue of identification as it presents for determination in the plaintiff’s action for common law damages for breach of statutory duty or her claim for equitable compensation. The defendants submitted that the question that arises in these proceedings is not the state of knowledge or belief of the various people who the plaintiff claims reported to her that they identified her in the articles, (as would be the case were the action brought in defamation where proof that the words said to be defamatory would reasonably lead persons acquainted with the plaintiff to believe that she was the person referred to is essential to liability for damages (see Samuels JA in Steele v Mirror Newspapers Ltd at 371 B-F)), but whether, as a matter of fact, the articles (in the terms in which they were published) identified or were likely to lead to the identification of the plaintiff such as to constitute a breach of the prohibition on publication with which s 578A is concerned, or which might support a claim for equitable compensation.

55. In support of that submission the defendants referred to Bailey v Hinch [1989] VR 78 where Gobbo J, when considering legislation in similar terms to s 578A of the Crimes Act, said at 93, “[i]n my view, the operation of the words in question [being “identify” or “likely to identify”] is a matter of fact in each case”. Thus, the defendants submitted, evidence that a person known to the plaintiff, whether or not they knew something of her experience as a victim of child sexual assault, may have identified her as a subject of the articles does not bear relevantly on whether the Court is persuaded that the articles either identified the plaintiff or were likely to do so (and even less so is it determinative of that fact). While the plaintiff bears the onus of proving that the articles had that capacity if she is to prove the breach of duty under s 578A (or to support her claim for equitable compensation), she does not discharge that onus by adducing hearsay evidence that she was identified.

56. Mr Gray SC, senior counsel for the defendants, submitted that while there are similarities between the statutory test to establish breach of the prohibition on publication in s 578A(2), namely does the matter published identify the complainant or is it material that is likely to lead to their identification, and the factors to be taken into account in determining whether a defamatory imputation has identified a particular person in circumstances where the defamatory publication does not name the plaintiff, the two tests are not congruous. The harm caused by a defamatory publication is different from the harm caused by the publication of identifying material in breach of s 578A: the former concerns injury to a plaintiff’s reputation as a consequence of identified or identifiable persons reading a publication in which defamatory statements are made and identifying the plaintiff as the subject of those statements, while the harm which s 578A is presumed to guard against concerns interference with a complainant’s right to privacy, and to achieve a secondary public policy purpose of encouraging victims of sexual abuse to disclose abuse to authorities without fear of public exposure.

57. I do not regard the authorities upon which the plaintiff relied as they relate to the tort of defamation as distinguishable simply because harm to reputation that results from an actionable defamation is, or may be, different from the need to prove damage in a common law claim for breach of a statutory duty or breach of confidence. I am of the view, however, that the authorities upon which the plaintiff relied, all of which were decided in the context of an action in defamation and largely limited to the question of damages, have no direct application to the issue of identification that arises in these proceedings. In my view, whether the articles actually identified the plaintiff, or were likely to do so, is a question of fact to be resolved by the Court. That exercise will be undertaken principally by considering the text of the published articles and, where appropriate, the inferences that may legitimately be drawn from the text by the community of readers who know the plaintiff or who might be presumed to know her, including those witnesses who attested to having identified her (evidence as to which no objection was taken). I am satisfied that evidence of those witnesses (including the plaintiff) who say that they were told by others that upon reading the articles they identified the plaintiff is irrelevant to proof of that fact.

58. I am also satisfied that the evidence is admissible as evidence of a contemporaneous representation about a person’s state of mind pursuant to s 66A of the Evidence Act, but limited to the assessment of damages. The declarant’s state of mind (namely, a belief that the article identified the plaintiff as the child who was sexually abused by a Church elder) is relevant to damages, it being the plaintiff’s case that the identification of her as one of the children the subject of the article by various members of her community caused her hurt, distress, embarrassment, humiliation, shame and guilt.

59. The balance of the affidavit evidence upon which the plaintiff relied may be summarised as follows.

Affidavit of the plaintiff of 27 March 2017

61. The plaintiff deposed to having been raised in the Plymouth Brethren community in regional New South Wales. She attended a state school from kindergarten to Year 6, was home-schooled for part of Year 7, and attended various Plymouth Brethren schools in Sydney and regional New South Wales until completion of her Higher School Certificate in 2007. Thereafter she was employed in clerical roles in Australia and the United States within the community of the Church before taking leave from paid employment to care for her two children.

62. The plaintiff refers, without elaboration, to the sexual assault she suffered whilst living with Mr Jensen and his wife and the events that ultimately led to her disclosure of that abuse to the authorities, and to the trial and subsequent conviction after trial of Mr Jensen in November 2005.

63. The plaintiff describes issues with her mental health which she traces to the time when she was first assaulted. She was medicated from age 12, having been prescribed unspecified medications (save for a reference to Zoloft, an antidepressant) to assist with sleeping, and to manage her depressed mood and anxiety. Her mental health deteriorated during the criminal trial of Mr Jensen (when she was aged 14 to 15). She underwent extensive psychological counselling at that time. At age 15 she engaged in self-harm by cutting her wrists and commenced to abuse alcohol. From her late-teens she developed a chronic dependency on alcohol which increased in severity upon her return to Australia in 2012.

64. The plaintiff was first admitted to SJOG for detoxification under psychiatric care in May 2014, at which time she was consuming approximately 20 standard drinks per day. She remained “sober” for about four weeks before she relapsed. As noted at [42] above, she was re-admitted to SJOG in May 2016 for another course of detoxification and upon her discharge in June 2016 felt confident about her prospects of remaining sober and resuming her communion with the Plymouth Brethren community.

65. Upon reading the articles she says her “optimism vanished”. She described her psychological state immediately following publication of the articles as follows:

Despite my prior excitement to go to church and see the Brethren, I did not go. I felt so humiliated. I believe that there would be people there who would have known some detail about my sexual assault and identified me from the Article as well as those people who didn’t know about the sexual assault or the Note but who would have identified me from the Article or found out from others that the Article referred to me.

…

Later that day, I went to visit my daughter at [my husband’s] parent’s house. I was meant to take my daughter back home with me that day but I was unable to care for her. I was physically shaky and unstable. I could not function and as much as I wanted my baby, I physically could not care for her.

66. In the months following publication of the articles, the plaintiff deposed to a recurrence of mental health issues including high levels of anxiety, panic attacks and hyperventilation, frequent crying and emotional lability. She also described a dependence on medication including Valium and Endone (which ultimately led to her third admission to SJOG in October 2016), and her inability at that time to properly care for her daughter.

67. In December 2016 the plaintiff and her husband resumed full-time care of their daughter but the plaintiff described difficulties getting up in the morning after resuming full-time care of her daughter. She described feeling shaky and anxious. She recounted two instances of self-harm at this time, including the use of a knife on her wrist and upper thigh. By February 2016 the arrangement whereby the plaintiff’s daughter would spend a few nights a week in the care of her husband’s parents was reinstated.

68. In February 2017 the plaintiff was admitted to Brisbane Waters Private Hospital (BWPH) at Woy Woy for treatment of her tendency to self-harm and for assistance in reducing her use of anti-depressant medications. Upon her discharge in March 2017 she described a reduced reliance on prescription drugs but said that she continues “to struggle with everyday life”.

69. The plaintiff also deposed to what she described as “The Rumour Mill”, being hurtful things she believed people within the Brethren community have said about her following the publication of the articles and her belief that the articles have given people who knew little of her personal and family history “cause to see [her] in a negative and shameful light making them feel justified for spreading cruel and untrue rumours about [her]”.

70. Although the plaintiff’s evidence was not challenged, including her evidence as to the deleterious effect of her belief that people identified her from the articles and held her in low esteem as a result, the defendants submitted that to the extent that her claim for damages (or equitable compensation) is made out, her damages will be nominal in circumstances where there is an insufficient causal link forged between the publication of the articles in June 2016 and her decompensating mental health thereafter, in particular where there is evidence of a range of pre-existing causal factors for her fluctuating mental health, not least the history of sexual assault itself and her chronic dependency on alcohol and prescription drugs for an extended period of years.

Affidavit of the plaintiff’s husband dated 27 March 2017

71. The plaintiff’s husband deposed to knowing that the plaintiff was sexually assaulted by Mr Jensen as a child. He also deposed to observing an increase in her consumption of alcohol in mid-2012, many years prior to the publication of the articles, and that her dependence on alcohol increased from mid-2012 culminating in a referral to SJOG in 2015 and her admission for treatment in a hospital setting that year. The date of her first admission (which the evidence suggests in fact occurred in 2014) has no bearing on the assessment of damages in the absence of evidence that her pre-existing psychiatric illness or psycho-social predisposition to harm as a result of her dependence on alcohol was exacerbated by the publication of the articles, as distinct from that condition being a sequela of a number of chronic and long standing physical and mental health issues. There was no evidence to that effect.

72. Consistent with the plaintiff’s evidence, her husband deposed to her alcohol consumption reducing following her first admission to SJOG (either in 2014 or 2015), but steadily increasing, again for reasons unrelated to the publication of the articles, culminating in a further admission in May 2016. He observed that following the plaintiff’s second admission to SJOG she had improved self-confidence and sense of self-worth. He recalled the events of 18 June 2016 when, after he read the articles, he showed them to the plaintiff; and the plaintiff’s subsequent deterioration over the course of the day leading to what he described as her “shut[ting] off from everyone and emotionally detach[ing] from our baby”.

73. The balance of the plaintiff’s husband’s affidavit addressed the plaintiff’s inability to devote her attention to their daughter due to her poor mental health, her further admission to SJOG and her admission to BWPH in 2017.

Affidavit of TP dated 12 April 2017

74. TP is a relative of the plaintiff by marriage. His wife and the plaintiff’s mother are cousins. He grew up in Wagga Wagga, New South Wales, and is a member of the Plymouth Brethren. When the plaintiff’s family visited Wagga Wagga before the dislocation of the family unit they would often stay with TP’s family.

75. As a result of TP’s contact with the plaintiff he knew various details about her, including that she lived in a town in regional New South Wales; that her father left the church after revealing his homosexuality; that the plaintiff and her sister had been assaulted by Mr Jensen, an elder of the Plymouth Brethren, and that Mr Jensen was the subject of two criminal trials in the early 2000s for sexual abuse of the plaintiff and her sister. He claimed no knowledge of the details of the physical and sexual nature of the criminal assaults alleged against Mr Jensen.

76. He said that having read the article published on the Sydney Morning Herald website, after having been alerted to them by his brother, he realised “without any hesitation, that the two sisters referred to in the article were the plaintiff and her sister”.

Evidence of JK

77. JK is a family friend of the plaintiff and is married to one of the plaintiff’s cousins. JK’s father, NK (whose affidavit was also read as part of the plaintiff’s case) knew the plaintiff’s mother. JK’s affidavit of 13 April 2017 was read. Additional evidence was adduced in chief and he was cross-examined.

78. In his affidavit JK detailed the circumstances in which his father and the plaintiff’s mother grew up together on the Central Coast of New South Wales and of meeting the plaintiff in about 2006 and 2007 in that connection. He said the plaintiff lived with his family for approximately six to nine months in the beginning of 2010.

79. He said he knew that the plaintiff had grown up in regional New South Wales; that she was four years older than her younger sister; that she had left the regional town in which they lived to “get away from stuff going on within the Church”; that she “had come from a broken and troubled family”; that her parents had separated; that her father had left the Church because he was homosexual; and that her mother suffered a serious injury in an accident such that her “mental state was not the best”.

80. He also knew that Mr Jensen was a senior member in the Church and resided in the same regional town as the plaintiff and that Mr Jensen was “somehow connected” with the plaintiff. He said he was unsure of the nature of the connection although he knew that court proceedings in the early 2000s involved the plaintiff and Mr Jensen and that his father was also involved in some way in those proceedings. He said that because of his father’s connection with the proceedings, his father had taken “an interest” in the plaintiff. He suspected that his father “may have instigated [the plaintiff’s family’s] move to the Central Coast” in 2010.

81. He recalled being informed by his father on 15 June 2016 that there would soon be an article published in the Sydney Morning Herald about the Plymouth Brethren and, on 18 June 2018, he purchased a copy of the newspaper. He said that after reading the articles he formed the view that the plaintiff was one of the children referred to.

82. He also deposed to having first seen the plaintiff some months after the publication of the article at a dinner at his parent’s home. He recalled that the plaintiff and her daughter were present and that the plaintiff seemed erratic and disconnected, and that she appeared to struggle with managing basic parenting tasks. He also recalled that the plaintiff progressively removed herself from Church functions, and that she was “not the social person she was in early 2016”.

83. During examination-in-chief JK gave evidence as to the source of his knowledge of the plaintiff’s father’s sexuality. He said that at approximately age 14, he came to know that the plaintiff’s father was homosexual; information he learnt at school on the Central Coast through “general rumours and conversation with other students” who were from the Plymouth Brethren community. He said that rumours about the sexuality of the plaintiff’s father was something he heard “more than once” and that he had heard it before the plaintiff moved to the Central Coast. He said that it was not the sort of information that he had heard said about other men in the Brethren community.

84. During cross-examination JK accepted that prior to publication of the articles he knew the following facts:

1. the plaintiff had grown up in a regional town, and the name of that regional town;

2. the plaintiff had a younger sister and her age;

3. the plaintiff and her younger sister left the regional town in which they lived to “get away from stuff going on in the church”; that “stuff” being that the plaintiff’s father had left the church due to his homosexuality, and that the plaintiff’s family was broken and troubled;

4. the plaintiff’s parents separated in 2006 or 2007;

5. the plaintiff’s mother had suffered a serious injury in an accident and that she had poor mental health;

6. somebody called “Lindsay Jensen” lived in Albury and was a senior member of the Plymouth Brethren, and that there was some connection between Mr Jensen and the plaintiff’s family;

7. there had been court cases in the early 2000s involving the plaintiff’s mother and Mr Jensen.

85. Having established JK’s knowledge of these matters, JK was provided with the sentencing remarks of Murrell SC DCJ following the criminal trial of Mr Jensen where the plaintiff’s sister was the complainant. JK accepted that the sentencing remarks referred to Mr Jensen’s sexual assault of two young girls who lived in regional NSW. He also accepted that the judgment referred to the children’s parents being separated and that Mr Jensen had sexually assaulted both children after their mother had suffered a serious injury in an accident and could not care for her children. He said, however, that he would not necessarily have recognised that the sentencing remarks concerned the plaintiff and her sister. He later accepted (albeit in a qualified way) that his prior knowledge of the plaintiff and the matters referred to in the sentencing judgment might have enabled him to identify the plaintiff as one of the two sisters to whom her Honour referred but that was “not necessarily” the case.

86. He maintained the position, however, that he did not know until reading the articles that Mr Jensen was convicted and imprisoned for sexual offences against two girls who were sisters. He denied knowing that the plaintiff and her sister had been sexually assaulted by Mr Jensen.

87. Following cross-examination, I posed the following questions to JK:

Q.  Do I understand you to say this, Mr [K]; that if you were given the hypothetical exercise in 2016, of reading her Honour's sentencing remarks and you were asked this question, having read her Honour's sentencing remarks and knowing what you know about both Jensen as a man who you said you knew as a member of the Brethren, and the plaintiff and her sister as children of a Brethren family who had come to live with you in circumstance where there'd been a separation of their parents and in circumstances where you knew there was, I think you described it as, "Stuff going on within the church," if somebody had said to you, "Have you got any idea who these two children might be" and, I appreciate, it's very difficult to isolate your mind from what you actually now know to a state of abstract thinking at that time?

210. In Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21; 265 ALR 28 the Full Court of the Federal Court identified four elements as foundational to establishing an actionable breach of confidence:

1. the information that is said to be confidential must be identified with specificity;

2. the information must have the necessary “quality of confidence”;

3. the information was imparted in circumstances importing an obligation of confidence;

4. there must be an actual or threatened misuse of the information by the defendant without the plaintiff’s consent.

What is the confidential information the plaintiff contends was published and does it have the necessary quality of confidence?

212. The requirement that the confidential information be identified with specificity was a formulation adopted by the Full Court in Optus Networks following the approach of Gummow J in Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1990) 22 FCR 73 at 87. The Full Federal Court emphasised that:

[T]here can be no breach of the equitable obligation unless the Court concludes that a confidence reposed has been abused, that unconscientious use has been made of the information": Smith Kline & French Laboratories (Australia) & Ors v. Department of Community Services & Health, Secretary & Anor [1991] FCA 154; 28 FCR 291; 99 ALR 679 at [51].

213. In Streetscape Projects (Australia) Pty Ltd v City of Sydney [2013] NSWCA 2 Barrett JA (at [159]-[162]) (Meagher and Ward JJA agreeing), made similar observations. Barrett JA drew particular attention to:

1. the importance of specifying with precision the information said to be confidential; and,

2. the effect of information entering the public domain.

214. His Honour said:

159. The need for specificity in the identification of the information said to be confidential in respect of which relief is sought comes from the fact that the court must make an assessment of the quality of that information, that is, whether it is in truth of a confidential nature. An aspect of that inquiry may turn on whether the whole or some part has become the subject of general disclosure or notoriety. Precise delineation of the subject matter is accordingly essential. The task of a plaintiff, in this respect, is, in the words of Gummow J in Smith Kline & French Laboratories (Australia) Ltd v Department of Community Services and Health (1990) 22 FCR 73 at 87, "to identify with specificity, and not merely in global terms, that which is said to be the information in question".

…

162. The fact that information that was confidential when obtained has later entered the public domain means that its confidential quality is lost. In Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, Lord Goff explained (at 282) that "public domain", for these purposes, means "no more than that the information in question is so generally accessible that, in all the circumstances, it cannot be regarded as confidential".

(Emphasis added.)

215. These statements were approved by Beazley P (Macfarlan and Emmett JJA agreeing) in Marshall v Prescott [2015] NSWCA 110 at [50]-[57].

216. In par 24 of the plaintiff’s statement of claim the “confidential information” said to have been published by the defendants in breach of the duty of confidence they owed to her was identified, with specificity, as follows:

1. that she was a child victim of repeated sexual abuse;

2. that the sexual abuse took place whilst she was in the care of her abuser;

3. that the sexual abuse took place within the closed religious community of the Exclusive Brethren within which they both lived;

4. her handwritten note.

217. The identification of what is contended to be “confidential information” has allowed an assessment to be made as to whether the “information” is of a confidential nature, together with an assessment as to whether, as Barrett JA expressed, it “the whole or some part [of the information] has become the subject of general disclosure or notoriety”.

218. In essence, it was the plaintiff’s case, as formulated in closing submissions, that the information in (a)-(c) is confidential information because it concerns her status as a victim of child sexual assault. The handwritten note in (d) is in a different category. It was her case that the note was personal to her because of the context in which it was written, and the duress to which she was subject when she wrote it (including under dictation from Mr Jensen), such that the note was, as her counsel described it, “confidential in and of itself”.

219. As concerns the confidential information nominated as such in (a)-(c) above, the plaintiff also accepted that the alleged disclosure of that information depended upon the article actually identifying her as the elder of the sisters sexually abused by Mr Jensen. The plaintiff’s counsel also accepted the self-evident proposition that because none of the pieces of information in (a)-(c) have any connection to the plaintiff in the abstract, they do not have a confidential character in the abstract. In his closing submissions the position of the plaintiff was put as follows:

Where [these matters] become confidential is because of the integer of the plaintiff … [T]here is no breach of confidence unless there is identification [of her] and that’s put by the defendants in their submissions and we accept it.

220. Since the plaintiff did not advance the case that her identity as a victim of child sexual assault was a conclusion reached by readers who were able to deduce that she was the person referred to in the article because they were already possessed of some or all of the confidential information (or for that matter other information about her), the disclosure of the confidential information in (a)-(c) must be taken to mean that the articles actually revealed that the plaintiff, and not some unidentified child, was the victim of child sexual assault by revealing or disclosing information that the reader did not previously know about her. This is consistent with Nakhl Nasr v State of New South Wales; George Nasr v State of New South Wales [2007] NSWCA 101 at [127] where the Court of Appeal approved statements to the effect that "disclosure" involves making known to a person information that that person did not previously know.

221. The defendants also submitted, correctly in my view, that the statutory language in s 578A(2) where the prohibition also applies to the publication of material being “likely to lead to the identification” of the plaintiff as a complainant in sexual assault proceedings had no application in the claim she brings for equitable compensation. The defendants emphasised, as they did when meeting the plaintiff’s claim for common law damages, that the articles do not name the plaintiff, her sister or any member of her family and that the note, as published, redacts her name and that of her grandfather. The only person named in the articles was Mr Jensen. Furthermore, the articles contain no photograph of the plaintiff nor anyone associated with her, and the name of the "regional town" where she lived is not named. In all respects, the defendants submitted, the article observes essentially the same precautions against the risk of identification as the publicly available remarks on sentence by Murrell SC DCJ (R v Lindsay Ronald Jensen [2007] NSWDC 15) on 16 January 2007, the press coverage of the trial in December 2006, and the sentence proceedings the following year (extracted at length above).

222. Aside from the defendants’ submission that the articles manifestly do not identify the plaintiff (reflecting what was said to be the defendant’s awareness of the prohibition in s 578A on identifying her or publishing material likely to lead to her identification as a complainant in a prescribed sexual assault proceeding), the defendants’ foundational submission was that information adduced in open court, whether it is tendered in evidence or otherwise disclosed in the course of the proceedings, does not, by its nature, have the necessary "quality of confidence" to support a claim for breach of confidence. It follows, in the defendants’ submission, that information that is the subject of proceedings conducted in open court cannot be "confidential", and that any claim to the contrary is inimical to the principles of open justice. It was the defendants’ case that all of the information in (a)-(d) was information adduced in evidence at the Jensen trial and, subject only to the non-publication orders issued by the trial judge and the operation of s 578A of the Crimes Act, it was information in the public domain and available to be reported upon by media interests.

223. Adherence to and promotion of the principle of open justice has been so frequently reaffirmed as fundamental in common law jurisdictions it hardly needs re-stating. In Commissioner of Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5, the High Court at [44] stated that:

The rationale of the open court principle is that court proceedings should be subjected to public and professional scrutiny, and courts will not act contrary to the principle save in exceptional circumstances.

224. The NSW Court of Appeal adopted that approach in Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403. While the Court was concerned with a question of statutory construction, the observations of Bathurst CJ and McColl JA at [26] remain apposite:

The principle of legality favours a construction of legislation such as the CSNPO Act which, consistently with the statutory scheme, has the least adverse impact upon the open justice principle and common law freedom of speech and, where constructional choices are open, so as to minimise its intrusion upon that principle: Hogan v Hinch at [5], [27] (French CJ); see also Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 55 (Kirby P).

225. Subject to the intrusion of statute where the principle of open justice is restricted for competing public policy imperatives (as is the case with s 578A), the public importance of fair and accurate coverage of criminal trials by the media is clear. It was endorsed by Murrell SC DCJ when she refused an application by the plaintiff’s mother under s 292 of the Criminal Procedure Act that there be no publication of the trial transcript In R v Lindsay Ronald Jensen, District Court, Murrell DCJ, 18 December 2006, her Honour said (at [7]-[8]):

7. There is a strong public interest in matters of child sexual assault being publicised in a way that does not identify particular victims. It is through publication of such matters that the public gains an understanding of the nature and extent of child sexual abuse in the community. The publication of such matters can assist the public to understand about child sexual assault and can serve to encourage other victims to come forward.

8. Therefore, I determine, first, that the victim has no [standing] to make this [application], and, second, that, if she had standing, the application should be refused.

226. The defendants also referred to Johns v Australian Securities Commission (1993) 178 CLR 408; [1993] HCA 56 which concerned the validity of a decision to release transcripts of compulsory examinations in a public hearing of a Royal Commission and whether, once in the public domain, the confidentiality attaching to the transcripts was lost such that equitable relief was not available to the examinees. At 432, Brennan J said as follows:

There remains the question of the relief against H.W.T. and the A.B.C. Counsel for Mr. Johns submits that, as the information contained in the transcripts has not been generally disseminated by the media and as the Royal Commission imposed a ban on further dissemination, the information is not in the public domain. In support of this submission, counsel cited passages from cases in which the courts have acknowledged that relief can be given to restrain a defendant from publishing confidential information after some limited publication has occurred. A defendant who, having received information in circumstances which impose a duty of confidence, makes a limited publication in breach of that duty, can be restrained from further breaching the duty by making a wider publication. But that is not the present case. Here the transcripts were exhibits tendered before the Royal Commission sitting in public. H.W.T. and the A.B.C. obtained copies of the exhibits as documents already in the public domain. When the proceedings of a court, tribunal or commission created by statute or in exercise of the prerogative are open to the public and a fair report of the proceedings can lawfully be published generally, it is not possible to regard information published in those proceedings as outside the public domain. Information published in those circumstances enters the public domain by a lawful gate. Once in the public domain, it can be freely used or disseminated. Information obtained by the media in this way is not “imparted so as to import an obligation of confidence”: The Commonwealth v John Fairfax & Sons Ltd, per Mason J. In such a case, the public domain is not measured by the extent of media reporting. If media reporting were the measure of the public domain in relation to information published in such proceedings, the defamation laws would have to be reformulated. It is unnecessary to consider the question whether a defendant to whom information was imparted in circumstances which imposed an obligation of confidence can, by a wide publication of the information in breach of that obligation, avail himself of a defence that the information is thereafter in the public domain. This case concerns information which was already in the public domain at the time when H.W.T. and the A.B.C. acquired it. In Marcel v Commissioner of Police of the Metropolis, Browne-Wilkinson V.-C. said:

[T]here can be no breach of the duty of confidence once the information or documents are in the public domain and the confidentiality has therefore disappeared. In the case of the … documents which have been read in open court, they have now lost their confidentiality by disclosure in open court.”

Accordingly, no obligation of confidence was imposed on H.W.T. or on the A.B.C. either by equity or by the Act.

227. At 463, in what might be interpreted as a more nuanced approach, Gaudron J said:

Moreover, it is not axiomatic, in my view, that the transcripts entered into the public domain, in the sense that they lost their necessary quality of confidence, when tendered in the public proceedings of the Royal Commission. I can see much force in the view that no confidence attaches to material which is admitted into evidence in judicial proceedings, unless, of course, an order is made against publication. But it is not apparent that, in this regard, a Royal Commission is in the same position as a court. Royal Commissions usually operate ad hoc and their proceedings need not be public. Moreover in this case, the Royal Commission returned the transcripts to the A.S.C. on completion of its report, without making use of them in any way that presently permits of their contents being discovered and having earlier made an order against their further publication. Of course, if that order was within power, the question of confidentiality is largely, if not entirely, academic; but if beyond power, that is another reason for not equating the proceedings of a Royal Commission with those of a court.

228. In Missingham v Shamim [2012] NSWSC 288 Ward J (as her Honour then was) had occasion to consider the impact of Johns v Australian Securities Commission in proceedings where the plaintiff sought a permanent injunction to restrain the defendant from publishing information concerning the settlement of earlier Court proceedings, and the contents of the Deed of Settlement entered into in connection with those proceedings, other than as provided for in that Deed. One of the bases upon which the defendant resisted the granting of a permanent injunction was that since the relevant information had been posted on the NSW Caselaw website in a judgment, there was insufficient confidentiality in the information to be protected by the grant of injunctive relief. Her Honour distinguished the situation where there is an equitable obligation of confidence (the retention of the quality of confidence in material that has entered the public domain being essential to sustain a claim for equitable relief) and where the obligation of confidence is imposed by way of contract. In the latter case, as her Honour observed, whether the obligation attaches is a question of fact and degree. Her Honour said:

[62] I remain of the view that the question whether information has entered the public domain to such an extent as to permit its disclosure in the face of a contractual prohibition against disclosure is a question of fact and degree, taking into account the circumstances and the extent of any existing publication of the information. If only limited publication has occurred, and if relative secrecy remains, then the information may well retain its confidential character sufficient to make enforcement of that contractual obligation a matter of utility. Burchett AJ, in Artedomus v Del Casale [2006] NSWSC 146, referred to the statement in Cross, The Law of Intellectual Property: Copyright, Designs and Confidential Information Vol 2 section 25-85, that a claim for breach of confidence "is not to be defeated simply by proving that there are other people in the world who know the facts in question besides the man as to whom it is said that his disclosure would be a breach of confidence and those to whom he has disclosed them".

[63] In Johns v ASC (1992) 178 CLR 408, the concept of confidential information entering the "public domain" was considered by Gaudron J (at 460-462) in the context of the question whether there is or should be a duty of confidence imposed on third parties (a question which her Honour considered must depend, at least in part, on the extent to which the information in question is generally known or available). Her Honour noted that there were two distinct aspects of the notion of "public domain" (the first concerned with the question whether any duty of confidence arises and the second with whether it has come to an end) and that the concept of "public domain", in relation to the law of confidence, was primarily significant by reason of the fact that no obligation of confidence (there referring to the situation where an equitable obligation of confidence might arise) and, hence, no right to confidence can come into existence unless the information involved has "the necessary quality of confidence". Her Honour went on to say that where there is a question whether an obligation of confidence is extinguished because of subsequent publication to the world at large by third parties or, even, by the person who owed the duty in the first place, and it is said that the information has passed into the public domain, "The question that then arises is, in essence, whether the information has lost its confidential quality. And as already pointed out, that is largely a question of fact".

[64] Although in that case Brennan J, with whom Dawson J agreed, was of the view that:

When the proceedings of a court, tribunal or commission created by statute or in exercise of the prerogative are open to the public and a fair report of the proceedings can lawfully be published generally, it is not possible to regard information published in those proceedings as outside the public domain (Home Office v Harman [1983] AC 280, at pp 303, 312). Information published in those circumstances enters the public domain by a lawful gate.

[T]he balance of that passage refers to the use of such information on the basis that it has not been "imparted so as to import an obligation of confidence". Here, what is sought to be restrained is not the media report of proceedings in open court but breach of a confidentiality obligation on the part of a party to a settlement deed in circumstances where there is no evidence that there has been any wide publication of the contents of the judgment (and where the material in the judgment itself did not span the whole of the material that seems to me to be confidential under the deed itself).

229. Her Honour went on to find that there had not been disclosure at large of the information said to be confidential such as to destroy confidentiality in it or to lead to the exercise of discretion against the grant of a permanent injunction. At [68] her Honour said:

I have concluded that the inclusion of some of the terms of the settlement deed in the ex tempore judgment posted on the Court's website is at most a limited publication. I am not satisfied that it is to such an extent as necessarily to deprive the confidentiality obligation in the deed of any utility. There is no evidence that it has been accessed on a widespread basis since it was posted or by whom that access has been made. I accept that the Court should be astute not to deprive Mr Missingham of relief by reason of a limited publication in which he played no part (and which arose by reason of his invocation of the court processes in order to preserve the value of that very confidentiality).

230. In seeking to persuade the Court to find that despite the media coverage of the trial and the attention given to it in the book written by the second defendant, and despite the publicly available sentencing remarks of Murrell SC DCJ, “relative secrecy” attached to her identity as a victim of child sexual assault, the plaintiff submitted that the degree of accessibility to the material which the defendant identified as in the public domain is unmeasured and, for that reason, it cannot be assumed that the dissemination of the information was so widespread that the plaintiff’s identity as one of the children sexually abused by Mr Jensen, and the note she wrote retracting the allegations, are of such notoriety, or so squarely in the public domain, that the quality of confidence (concerning her identity as victim of child sexual assault) is lost. The defendants did not seek to prove the extent of publication of the confidential information, but merely the fact that it occurred and the various forms of media that were the source of that dissemination. The resolution of that question aside, it remained the settled position between the parties that the plaintiff’s claim for equitable relief will fail unless she makes good her contention that the articles published actually identified her as one of the children sexually abused by Mr Jensen since it is only by that conduct that the plaintiff can maintain the submission that they have breached their duty of confidentially to her.

231. The plaintiff submitted that this Court would take the same approach Hampel J took in Jane Doe v ABC where at [131] her Honour rejected the submission that because the plaintiff's identity had been published in open court the information concerning her identity had lost the necessary quality of confidentiality. As I have already observed, that case is vastly different from this case if for no other reason than the defendant publishers actually named the plaintiff and, in that way, positively identified her as the victim of the sexual assault by her husband. In addition, the defendant publishers admitted that they breached the prohibition on publication in s 4(1A) of the Judicial Proceedings Reports Act. Were the defendants in this case to have flagrantly breached the prohibition in s 578A on the public revelation of the plaintiff’s identity as a victim of child sexual assault (in fact in any case where a person's sexual history or highly sexualised photographs, be that of a child or an adult, are published without authority or consent) I have no doubt that a case might be mounted for the equitable relief the plaintiff seeks. However, a quite different factual scenario is under consideration here. The defendants deny breach of s 578A. It is their case that the information identified and relied upon by the plaintiff as the "confidential information” does not identify her as a victim of child sexual assault, any more than the same or similar information in media reports, the sentencing judgment or the account of the abuse in the second defendant’s book has that effect.

232. Having already found, as a matter of fact, that even were I satisfied that a right to sue for breach of statutory duty should be inferred from the terms of s 578A (which I was not), there was no actual identification of the plaintiff in the subject articles (even if there might have been material that was likely to lead to her identification by people sufficiently familiar with her life circumstances to draw that conclusion), her claim for equitable relief based on disclosure of what was said to be the confidential information in (a)-(c) fails.

233. What remains to be considered is whether the plaintiff can make out a case for equitable compensation based solely upon publication of “the note” (the confidential information in (d) in [216] above).

234. The plaintiff submitted that even were there no link to the plaintiff by the terms of the note, its publication is nonetheless capable of constituting a breach of the defendant's duty of confidence because the note is capable of bearing the quality of confidentiality essential to the equitable relief the plaintiff seeks. In this context the plaintiff submitted that the simple tender of the note and its admission into evidence in Mr Jensen’s trial did not deprive it of the character of an "intensely private document", there being no evidence in the proceedings before me that the content of the note was known to anyone other than the parties to the trial (and it would seem the plaintiffs mother and probably her father and then later her treating doctor) until such time as the second defendant was granted access to it as part of the materials within the court file.

235. There was controversy as to whether the plaintiff could make a case for breach of confidence where the information in the note does not meet the test for confidential information because it does not identify her as a victim of sexual assault (as plainly it does not given the deliberate redaction of her name and that of her grandfather by the defendants prior to publication). The plaintiff submitted that it is open to this Court to find that it is the reproduction of the handwritten note, in a photographic form, in the context of the article about the plaintiff and how she came to write it, to which confidentiality is said to attach.

236. I am not satisfied that the information in the note (that is the text) is information to which an obligation of confidence attaches, if for no other reason than it was a document to which the second defendant was given access for the stated purpose of potentially using the information as a journalist. The only restriction which applied to his entitlement to “use” the note was that it not be photocopied. The further question then arises as to whether I am persuaded that the photographic image of the note is of such a “confidential quality” in itself that to publish it was, in effect, to publish a confidential communication between a victim of sexual assault and her abuser that would warrant the intervention of equity.

237. In final submissions the plaintiff's case was that the second defendant must have appreciated, at the very least when he found the original note in the court file in 2016, that it was created in a very particular context, namely by a child who had been the subject of sexual assault by an elder of the Church and who had written the note at the direction of the man who abused her, or his agents, and that the note was (and the second defendant should have known it was), as the plaintiff’s senior counsel described it:

A violation of an interest that was intensely personal to her, the disclosure of which was humiliating and for that reason precisely the sort of interest which the modern cases of breach of confidence enable the court to protect against.

238. Whether the second defendant gained the knowledge about the provenance of the note from his reading of the trial transcript at the point in the trial when the note was tendered, or perhaps in counsels’ addresses about the probative weight of the note as evidence, or whether he gained that knowledge from information provided to him by the child's father (an inference that squarely arises from the attribution of the footnote in the book written by the second defendant) is not to the point. The question is whether there is any relevant analogy to be drawn between the publication of the note as an image and a line of authority to which the plaintiff referred where, notwithstanding the absence of what might be referred to as "a classical relationship of confidence”, the Court will impose an obligation of confidence on the recipient or possessor of information where the circumstances in which access was gained to it imports that obligation. In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63, at [34], Gleeson CJ accepted that “equity may impose obligations of confidentiality even though there is no imparting of information in circumstances of trust and confidence.

239. The plaintiff referred to Campbell v MGN Ltd [2004] 2 AC 457 in which the House of Lords awarded damages for breach of confidence against a newspaper which published details of a female model’s attendance at Narcotics Anonymous and a photograph of her leaving the premises where the meeting was convened, and to Giller v Procopets [2008] VSCA 236; (2008) 24 VR 1 as examples of circumstances in which equity may intervene.

240. In my view, neither case support the attribution to the second defendant of a duty of confidence not to reproduce a photograph of the note in the published article, in circumstances where the note does not, in any relevant sense, identify the plaintiff as its author, as distinct from it being referable to an unidentified child having written it at the behest of her abuser. This is in stark contrast to the photographic images of the plaintiff in each of the cases upon which the plaintiff relied where the very fact of the photographs and the circumstances in which the plaintiff was clearly represented in them was relied upon as importing the quality of confidentiality. Another point of distinction between those cases and this case is that the Registrar granted access to the court file to a person who declared that his interest in the court file was as a journalist. While access was confined to reading the materials in the file, and it must be assumed reproducing their contents but by means other than photocopy or photography, including, for example, by notetaking for the purposes of accurate reporting of the court proceedings, and while it is also clear that the second defendant took a photograph of the note contrary to the terms upon which access was granted, that does not persuade me that the information comprised in the note, including the form in which it was written, was “surreptitiously obtained” or so inherently confidential that it would be “unconscientious” for the second defendant to be relieved of respecting the plaintiff’s confidentiality as its author.

241. In Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWCA 430; (2012) 295 ALR 348 Campbell JA (with whom Macfarlan JA agreed), said the following (at [100]):

Coco … does not provide an exhaustive statement of when equity will hold that an obligation of confidence has arisen. Of confidentiality as the Even if there is no entrusting of confidential information by A to B in circumstances of confidence, there can sometimes be an obligation of confidence that attaches to information that is inherently confidential or private if that information is illegally or surreptitiously obtained, or is come across in the street, or is received unsolicited: ABC v Lenah Game Meats (2001) 208 CLR 199 at [34]–[36] per Gleeson CJ; [123] per Gummow and Hayne JJ (Gaudron J agreeing); [169]–[170] per Kirby J; [223], [306] per Callinan J (dissenting as to the result); Franklin v Giddens [1978] Qd R 72 esp at 79–80; Sullivan v Sclanders (2000) 77 SASR 419 at [50]–[51], Campbell v MGN Ltd [2004] UKHL 22 ; 2 AC 457 at [14], [47],[85], [166]; Douglas v Hello! Ltd (No 3) [2006] QB 125). In such a case there is “an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained.” (Per Deane J, Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414 at 438.

242. In comments that are apposite to the plaintiff’s case, his Honour went on to say:

An obligation of confidentiality can be recognised even if there is no particular relationship between the parties and no deliberate malfeasance, but where a person receives information that, by virtue of the circumstances in which it is received, he or she knows or ought to know is confidential (see Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 281; Campbell at [14]; Trevorrow v South Australia (No 4) [2006] SASC 42 ; (2006) 94 SASR 64 at 74 [39] (Doyle CJ), 80–81 [80] (Debelle J) and 90 [118] (White J); West Australian Newspapers v Bond [2009] WASCA 127; (2009) 40 WAR 164 at [42]). The basis upon which equity intervenes in such circumstances is by deciding whether, in all the circumstances, it would be unconscientious for the recipient of the information to decline to respect the confidentiality of the information: ABC v Lenah at [45] per Gleeson CJ; [172]–[175] per Kirby J. That can depend not only on what the recipient knew at the time of receiving the information, but also on what the recipient has come to know by the time the court is considering whether or not to grant the remedy: ABC v Lenah at [46]; Johns v Australian Securities Commission (1993) 178 CLR 408 at 459–460 per Gaudron J.

243. The plaintiff alleges that the confidential information in each of (a)-(d) was not only imparted to the defendants in circumstances importing an obligation of confidence, because a reasonable person in his position would have recognised that the information to which he was given access, including the form of the note, was in confidence, but because of the second defendant’s obligation (and that of the first defendant) to adhere to the terms of the suppression order made by the trial judge and to abide by the legislative requirement in s 578A(2) that the plaintiff not be identified as a complainant in prescribed proceedings. In circumstances where it was clear that the plaintiff had not consented to publication of her identity as a victim of child sexual abuse, and the judge had not authorised disclosure of the plaintiff’s identity as a complainant in prescribed proceedings under s 578A(4), the plaintiff submitted that she is entitled to compensation for breach of the defendants’ equitable duty.

244. The defendants submitted that just as there is no private right to sue at common law for breach of the statutory prohibition enacted by s 578A, there is no equitable right of redress for breach of what is said to be an equitable duty not to contravene that same prohibition. I accept that submission.

Breach of suppression order

245. The plaintiff contends that the publication of the articles by the defendants was in breach of the suppression order made by Knight DCJ on 13 April 2017. The suppression orders made by his Honour are set out at [30] above.

246. I am not satisfied that the plaintiff has made out a case that the defendants breached the suppression orders made by Knight DCJ in any relevant respect. There is no publication of evidence as to the “particular manner” in which the plaintiff was assaulted by Mr Jensen nor has evidence of her emotional and physical reactions to Mr Jensen’s sexual conduct been published. Similarly there is no evidence that publication of material annexed to the affidavit of Ms Purches occurred, and, while the note was in evidence in the criminal trial, I am unable to see how it could be sensibly construed as evidence “of the attacks made on the personal character” of the plaintiff.

Orders

247. Accordingly, I make the following orders:

1. Verdict for the defendants.

2. The plaintiff is to pay the defendants’ costs.

**********