John Smith (a pseudonym) & Jane Smith (a pseudonym) v State of New South Wales

[2024] NSWSC 507

Supreme Court

New South Wales

Medium Neutral Citation:

John Smith (a pseudonym) & Jane Smith (a pseudonym) v State of New South Wales & Ors [2024] NSWSC 507

Hearing dates:

01 May 2024

Date of orders:

01 May 2024

Decision date:

01 May 2024

Jurisdiction:

Common Law

Before:

Weinstein J

Decision:

See [10]

Catchwords:

CIVIL PROCEDURE – parties – identity of parties – non-publication of a parties' name or identity – where orders are necessary to protect the safety of the plaintiff – plaintiffs permitted to commence and carry on proceedings using a pseudonym

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010 (NSW)

Cases Cited:

AB (a pseudonym) v CD (a pseudonym) [2019] HCA 16

AB (a pseudonym) v R (No 3) [2019] NSWCCA 46

ABC v Slowiaczek [2021] NSWSC 330

Category:

Procedural rulings

Parties:

John Smith and Jane Smith (Plaintiffs)
State of New South Wales (First Defendant)

Representation:

Counsel:
D Ward (Ex parte Plaintiffs)

Solicitors:
Zali Burrows at Law (Plaintiffs)

File Number(s):

Nil

Publication restriction:

See orders

JUDGMENT – DUTY – EX TEMPORE (REVISED)

1. By notice of motion, the plaintiffs seek to be heard ex parte. They seek, inter alia, non-publication orders pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (the Act) on the grounds contained in s 8(1)(a) and (c) of that Act with respect to their names and identities and, also, of a corporate identity.

2. The plaintiffs propose to commence proceedings claiming damages against four defendants alleging, inter alia, breach of confidence, breach of statutory duty, misfeasance in public office, negligence, and other causes of action based on allegations of improperly disclosed information.

3. The basis for this application is outlined in an affidavit of the plaintiffs’ solicitor Zali Burrows affirmed on 30 April 2024. In short, that affidavit discloses that the plaintiffs have significant fears for their safety if they commence and continue the proposed proceedings without pseudonym and other orders. These fears in my opinion are well-founded. There is also a medical report contained in Ms Burrows’ affidavit concerning one of the plaintiffs' mental health history and a diagnosis which is said to arise from the matters alleged in the proposed Statement of Claim.

4. The matter is somewhat unusual in that the plaintiffs seek anonymisation orders prior to commencing the proceedings. However, that is not unprecedented: see the judgment of Davies J in ABC v Slowiaczek [2021] NSWSC 330.

5. In AB (a pseudonym) v R (No 3) [2019] NSWCCA 46, the Court (Hoeben CJ at CL, Price and Adamson JJ) said at [47]:

"A Court is to take into account when deciding whether to make an order under the Act that a primary objective of the administration of justice is to safeguard the public interest in open justice, s 6.The Court's power to make orders which is conferred by s 7 of the Act entitles the Court to make orders prohibiting or restricting the publication or other disclosure of information tending to reveal the identity of a party to or witness in court proceedings and of information that comprises evidence or information about evidence given in proceedings before the Court. The grounds for making an order are set out in s 8…

6. I note that in this particular case, it is s 8(1)(c) that is material. It provides that a Court may make a suppression order or non-publication order if the order is necessary to protect the safety of any person.

7. In AB, the Court concluded that the calculus of risk approach which was identified by Nettle J in AB (a pseudonym) v CD (a pseudonym) [2019] HCA 16 was the proper test for a court to determine the basis upon which to make orders necessary to protect the safety of a person. In that case, Nettle J said at [15]:

"The criterion is not one of necessity to prevent harm to a person but of necessity to protect the safety of a person, and safety is a prosaic conception which is certainly informed by the nature and gravity of apprehended harm and the risk of its occurrence. To take but one, prosaic example, no-one today rationally doubts that the wearing of seatbelts while travelling in a motorcar is necessary to protect the safety of drivers and passengers. At the same time, it is certainly not the case that but for wearing of a seatbelt, it is more probable than not that an occupant of a moving motor car will suffer harm. That is not to suggest any risk of harm will suffice. To repeat, the provision is not concerned with trivialities but what it is intended to convey is that because the idea of safety invariably entails the assessment of risk, it should be regarded as sufficient to satisfy the test of "necessary to protect the safety of any person" that upon the evidence, the Court is satisfied of the existence of a possibility of harm of such gravity and likelihood that without the order sought, the risk of prejudice to the safety of the person would range above the level that can be reasonably regarded as successful.”

8. I am satisfied on the evidence before me that absent the orders which are sought, the risk of prejudice to the safety of both plaintiffs would range well above the level that could reasonably be regarded as acceptable. Indeed, in my opinion, it would be wholly unacceptable.

9. I observe that this application has been made ex parte. I am satisfied that it was appropriate that the application should have been so made. The prospective plaintiffs agree that they will advise the prospective defendants of the identity of the plaintiffs when they are served with the Statement of Claim.

10. In all of the circumstances, I make the following orders:

1. Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (the Act), and on the ground set out in s 8(1)(c) of the Act:

1. the first applicant is granted leave to commence and to continue proceedings under, and by reference to, the pseudonym “John Smith”;

2. the second applicant is granted leave to commence and to continue proceedings under, and by reference to, the pseudonym “Jane Smith”;

3. the applicants be granted leave to refer to the company, [redacted] (the Company), in all pleadings and other documents filed in the proceeding, by the pseudonym “XYZ Pty Ltd”.

2. At the same time that the applicants serve their Statement of Claim in the proceeding on each defendant, they must also serve on each defendant:

1. a copy of these orders;

2. written notice of the applicants’ true names; and

3. written notice of the true name of the company referred to as XYZ Pty Ltd in the Statement of Claim (in accordance with order (1(c)).

3. Pursuant to s 7 of the Act, and on the ground set out in s 8(1)(c) of the Act, the applicants and the Company henceforth be identified by the pseudonyms set out above in order (1):

1. on the court file and other court-generated records in the proceeding; and

2. in all documents filed in the proceeding; and

3. by all participants at all hearings in the proceeding; and

4. by any person who publishes any details of the proceeding to the public or any section thereof.

4. Pursuant to s 7 of the Act, and on the ground set out in s 8(1)(c) of the Act, if any party proposes to file any documentary evidence that includes the names of either of the applicants or the Company, then that evidence be filed (to the extent practicable) in a form in which:

1. those names are redacted; and

2. the relevant pseudonym is used in relevant parts of the document in question to indicate the identity of the person(s) named in the redacted portion(s).

5. Pursuant to s 7 of the Act, and on the ground set out in s 8(1)(c) of the Act, the Registry remove from the public court file any document that does not conform to orders (3) or (4) (including the applicants’ notice of motion and supporting affidavit of Zali Burrows dated 30 April 2024), and place it in a confidential envelope (to be placed on the court file), disclosure of the contents of which is prohibited throughout Australia, unless:

1. the disclosure is made by either applicant; or

2. the disclosure is made:

1. to the Court or to the parties, their employees or officers, their legal advisors or their expert witnesses; and

2. for the purposes of the proceeding.

6. Pursuant to s 7 of the Act, and on the ground set out in s 8(1)(c) of the Act, disclosure (by publication or otherwise) of any matter relating to these proceedings be prohibited throughout Australia to the extent only that such disclosure tends to identify the first or second applicant or the Company in connection with the subject-matter of the proceedings, save that this prohibition does not apply in circumstances where:

1. the disclosure is made by either applicant; or

2. the disclosure is made:

1. to the Court or to the parties, their employees or officers, their legal advisors or their expert witnesses; and

2. for the purposes of the proceeding.

7. Each of orders (1)-(6) above has effect until the Court makes an order revoking or amending it (on the Court’s own motion or on the motion of any person with a proper interest).

8. Orders (1)–(6) apply throughout the Commonwealth of Australia.

9. The costs of the motion be reserved.

10. Liberty to apply on three days’ notice.

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Decision last updated: 02 May 2024