MA v State of New South Wales

[2024] NSWSC 1366

Supreme Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

27 September 2024

Date of orders:

29 October 2024

Decision date:

29 October 2024

Jurisdiction:

Common Law

Before:

Faulkner J

Decision:

See [83]

Catchwords:

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

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 11, 15A, 15B, 15C, 15D, 15E, 15F, 15G

Court Suppression and Non-publication Orders Act 2010 (NSW). ss 3, 4, 6, 7, 8, 14, 16, 17

Crimes Act 1900 (NSW)

Criminal Procedure Act 1986 (NSW), s 292

Cases Cited:

Application by John Fairfax Publications Pty Ltd re MSK, MAK, MMK and MRK [2006] NSWCCA 386

DC v State of New South Wales [2010] NSWCA 15

DM v Life Without Borders [2016] NSWSC 1536

Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125

John Fairfax Publications Pty Ltd the District Court of New South Wales (2004 61 NSWLR 344; [2004] NSWSC 324

Nationwide News Pty Ltd v JS and SD [2022] NSWSC 774

Plaintiff A v Bird; Plaintiff C v Bird [2015] NSWSC 570

R v AB (No 1) [2018] NSWCCA 113

R v BB (No 6) [2021] NSWSC 1518

State of New South Wales v Plaintiff A [2012] NSWCA 248

State of New South Wales v Tina Lee (a pseudonym) (Preliminary) [2023] NSWSC 693

Category:

Procedural rulings

Parties:

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

Representation:

Counsel:
D Tang (Plaintiff)
M Lakiss (Defendant)

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

File Number(s):

2024/00136164

Publication restriction:

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

JUDGMENT

1. These are proceedings brought by a 36 year old Murrawarri woman whom I will refer to as the plaintiff. The plaintiff has made an application for suppression orders under s 7(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW), which I will refer to as the CSNO Act. The orders are alternatively sought pursuant to the inherent jurisdiction of the Court.

2. The defendant neither consents nor opposes the application.

3. The orders are sought by the plaintiff for one reason and one reason only, namely “to ensure coherence with s 15A of Children (Criminal Proceedings) Act 1987 (NSW)”. I will refer to this statute as the CCP Act

4. The application raises a question about the interaction between the CSNO Act and s 15A of the CCP Act.

5. In the circumstances of this case, the objectives sought to be achieved by the making of the orders under the CSNO Act can instead be achieved by giving directions. In those circumstances, and in any event, the orders are not necessary, and the application is to be dismissed.

Background

6. The background to the application may be stated briefly.

7. The plaintiff brings these proceedings against the State of New South Wales pursuant to a Statement of Claim filed on 2 April 2024. The plaintiff alleges that between 11 August 2021 and 19 April 2023 police officers frequently visited her home in regional Australia. She has particularised 153 occasions where the visits occurred, each occasion particularised by date, time and (almost always) the names and rank of the visiting police officers. The visits were frequent. Some of the visits occurred in the middle of the night and were intrusive. The plaintiff contends that at some stage, possibly at the outset and in any event subsequently, the visits became a trespass for which the plaintiff now seeks compensation from the State.

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

9. The context in which it is alleged the visits occurred is that since August 2021 two of the plaintiff’s children have been residing with her whilst on bail for offences alleged to have been committed by them contrary to provisions of the Crimes Act 1900 (NSW). The two people in question are “children” in the sense that, at all material times, they have been under the age of 16.

10. The names of the children, their ages, the offences with which they have been charged, the grants of bail in August 2021 and subsequent bail variations are all matters which the plaintiff has alleged in the Statement of Claim.

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

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

Statutory context

13. In order to understand the issues which arise in this application, the relevant provisions of the two statutory regimes need to be considered.

Children (Criminal Proceedings) Act 1987 (NSW)

14. The first statutory regime is contained in the Children (Criminal Proceedings) Act 1987.

15. The long title of the CCP Act reads as follows:

“An Act with respect to the conduct of criminal proceedings against children and other young persons.”

16. Part 2 of the CCP Act contains general provisions for criminal proceedings against children and other young persons. The word “child” is defined in s 3 to be a person who is under the age of 18 years.

17. Part 2 includes Division 3A which is headed “Publication and broadcasting of names”. Division 3A was inserted into the CCP Act by the enactment of the Children (Criminal Proceedings) Amendment (Naming of Children) Bill 2009 (NSW). The purpose of Division 3A is “protect[ing] children from the stigma of being associated with a crime, whether they be offenders, victims or witnesses, and to assist in their rehabilitation and recovery” (Second Reading Speech, 24 September 2008).

18. The first section in Division 3A is s 15A which relevantly as follows:

15A Publishing and broadcasting of names prohibited

(1)    The name of a person must not be published or broadcast in a way that connects the person with criminal proceedings if—

(a)    the proceedings relate to the person and the person was a child when the offence to which the proceedings relate was committed, or [perpetrator]

(b)    the person appears as a witness in the proceedings and was a child when the offence to which the proceedings relate was committed (whether or not the person was a child when appearing as a witness), or [witness]

(c)    the person is mentioned in the proceedings in relation to something that occurred when the person was a child, or [mentioned]

(d)    the person is otherwise involved in the proceedings and was a child when so involved, or [otherwise involved]

(e)    the person is a brother or sister of a victim of the offence to which the proceedings relate, and that person and the victim were both children when the offence was committed. [sibling of victim]

(2)    This section applies only to the publication or broadcast of a person’s name to the public, or a section of the public, by publication in a newspaper or periodical publication, by radio or television broadcast or other electronic broadcast, by the Internet, or by any other means of dissemination.

(3)    The publication of information to an Internet website that provides the opportunity for, or facilitates or enables, dissemination of information to the public or a section of the public (whether or not the particular publication results in the dissemination of information to the public or a section of the public) constitutes the publication of information to the public or a section of the public for the purposes of this section.

(4)    This section applies to the publication or broadcast of the name of a person—

(a)    whether the publication or broadcast occurs before or after the proceedings concerned are disposed of, and

(b)    even if the person is no longer a child, or is deceased, at the time of the publication or broadcast.

(5)    A reference in this Division to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

(6) A reference in this Division to a person who appears as a witness before a court in any criminal proceedings includes a reference to a child who gives evidence in the form of a recording in proceedings in accordance with Division 3 of Part 6 of Chapter 6 of the Criminal Procedure Act 1986.

(6A) A reference in this Division to criminal proceedings includes a reference to a hearing under Part 4C of the Children (Detention Centres) Act 1987.

(7)    A person who publishes or broadcasts the name of any person the publication or broadcasting of which is prohibited by this section is guilty of an offence.

Maximum penalty—500 penalty units (in the case of a corporation) or 50 penalty units or imprisonment for 12 months, or both (in any other case).

(8)    Proceedings for an offence against this section that are brought before the Local Court must be commenced within 2 years of the date of the alleged offence.

19. The CCP Act does not contain a definition of “criminal proceedings”. However,
    s 12A provides that Division 3A applies to a child who appears or is brought before a court in relation to a bail application in the same way as those provisions apply to a child who appears or is brought before a court in any criminal proceedings.

20. The prohibition specified in s 15A(1) applies by virtue of the enactment of the CCP Act. No order of the Court is required to make the prohibition operative in any particular case.

21. The prohibition in s 15A(1) uses the verbs “publish” and “broadcast”, neither of which is defined in the CCP Act. Section 15A(2) provides that the prohibition does not apply to all publication or broadcasting, but only to publication or broadcasting in accordance with the terms of that subsection. The limiting terms address two matters, namely:

1. to whom the publication or broadcast is made (the public or a section of the public); and

2. the means by which the publication or broadcast is made.

22. Subsection 15A(3) expands the concept of publication on the internet to include a website which provides the opportunity for, or facilitates or enables, dissemination of information whether or not dissemination actually occurs.

23. Division 3A is completed by six other sections, each of which contains an exception to the prohibition in s 15A. The exceptions are for:

1. the publication or broadcasting of an official report of the proceedings of a court (s 15B);

2. where there is a conviction for a serious children’s indictable offence (as defined), if authorised by a court (s 15C);

3. where there is consent either from the child or the Court concerned, depending on the age of the child (s 15D);

4. with the consent of a senior available next of kin if the child is deceased (s 15E);

5. where the criminal proceedings are for a traffic offence (as defined) and are not held before the Children’s Court (s 15F); and

6. where the conduct is done by a person in the proper exercise of official functions as a member of staff of a registry or other office of the Court in connection with the conduct and determination of criminal proceedings (s 15G).

24. Parliament has provided the sanction for contravention of the prohibition in
    s 15A(1). A person who contravenes s 15A(1) is guilty of an offence for which a maximum penalty is specified in terms of penalty units and a period of imprisonment: s 15A(7). Proceedings for an offence are to be brought in the Local Court and must be commenced within two years of the date of the alleged offence (s 15A(8)).

25. A review of the provisions of Division 3A as a whole makes plain that the regime has been crafted specifically for the purpose of protecting children. That purpose can be seen not only in the terms of the prohibition but also in the exceptions, the mechanism for consent, the width and duration of the prohibitions, the sanctions and the means of enforcement. The purpose of Division 3A is also apparent from the fact that it is part of the CCP Act.

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

26. The second statutory regime is contained in the CSNO Act. The CSNO Act empowers the Court to make suppression and non-publication orders in certain circumstances. Sections 6, 7 and 8 provide as follows:

6 Safeguarding public interest in open justice

In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

7 Power to make orders

A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of—

(a)    information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court, or

(b)    information that comprises evidence, or information about evidence, given in proceedings before the court.

8 Grounds for making an order

(1)    A court may make a suppression order or non-publication order on one or more of the following grounds—

(a)    the order is necessary to prevent prejudice to the proper administration of justice,

(b)    the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,

(c)    the order is necessary to protect the safety of any person,

(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including sexual touching or a sexual act within the meaning of Division 10 of Part 3 of the Crimes Act 1900),

(e)    it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

(2)    A suppression order or non-publication order must specify the ground or grounds on which the order is made.

(3)    Despite subsection (1) (d), a court may make a suppression order or non-publication order on the grounds that the order is necessary to avoid causing undue distress or embarrassment to a defendant in criminal proceedings involving an offence of a sexual nature only if there are exceptional circumstances.

27. The power given to the Court by s 7 is the power to make a “suppression order” or a “non-publication order”. These terms are defined in s 3 as follows:

suppression order means an order that prohibits or restricts the disclosure of information (by publication or otherwise).

non-publication order means an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information).

28. Section 3 also contains a definition of “publish” which is as follows:

publish means disseminate or provide access to the public or a section of the public by any means, including by—

(a)    publication in a book, newspaper, magazine or other written publication, or

(b)    broadcast by radio or television, or

(c)    public exhibition, or

(d)    broadcast or publication by means of the Internet.

29. The word “information” is defined to include any document.

30. The power given to the Court iwn s 7 may be exercised in both criminal and civil proceedings (see the definition of “proceedings” in s 3).

31. As s 6 makes clear, when considering an application for orders under s 7 the primary consideration for the Court is the principle of open justice: R v BB (No 6) [2021] NSWSC 1518 at [18] (Rothman J). If made, a suppression order or a non-publication order will necessarily detract from the principle of open justice. The principle of open justice is one of the most fundamental aspects of the system of justice in Australia. In John Fairfax Publications Pty Ltd the District Court of New South Wales (2004) 61 NSWLR 344 at 352-353; [2004] NSWCA 324 at [17]-[22], Spigelman CJ, with whom Handley JA and Campbell AJA agreed, said:

“The principles of open justice and of a fair trial

[17]    As often happens in a context involving fundamental principle, two such principles are in conflict and a judgment must be made as to which principle is to prevail in the circumstances. The principle of open justice and the principle of a fair trial each inform and energise many areas of the law, as I have sought to show in extra-judicial addresses. (See, J J Spigelman, “Seen to be done: the principle of open justice” (2000) 74 Australian Law Journal 290, 378 and J J Spigelman, “The truth can cost too much: the principle of a fair trial” (2004) 78 Australian Law Journal 29.)

[18]    It is well established that the principle of open justice is one of the most fundamental aspects of the system of justice in Australia. The conduct of proceedings in public including, relevantly, the taking of verdicts after a criminal trial, is an essential quality of an Australian court of justice. There is no inherent power of the court to exclude the public. (See Scott v Scott [1913] AC 417 at 473; Dickason v Dickason (1913) 17 CLR 50 at 51; Daubney v Cooper (1829) 10 B & C 237; 109 ER 438 at 440; Russell v Russell (1976) 134 CLR 495 especially at 507 and 520–521, 532.) The taking of a verdict is something which occurs in the ordinary course of criminal proceedings. (See, for example, Coulter v The Queen (1988) 164 CLR 350 at 356, 357 and cf 359–360, 362.) (2004) 61 NSWLR 344 at 353

[19]    It is also well established that the exceptions to the principle of open justice are few and strictly defined. (See, for example, McPherson v McPherson [1936] AC 177 at 200; R v Tate (1979) 46 FLR 386 at 402.) It is now accepted that the courts will not add to the list of exceptions but, of course, Parliament can do so, subject to any Constitutional constraints. (See, for example, Dickason (at 51); Russell (at 520); John Fairfax Publications Pty Ltd v Attorney General (NSW) (2000) 158 FLR 81 at 93 [70]–[73].)

[20]    The entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public. Nothing should be done to discourage fair and accurate reporting of proceedings. (See, for example, Attorney General v Leveller Magazine Ltd [1979] AC 440 at 450.)

[21]    From time to time the courts do make orders that some aspect or aspects of court proceedings not be the subject of publication. Any such order must, in the light of the principle of open justice, be regarded as exceptional. (See, for example, Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 50D–E and 54G.)

[22]    The principle of a fair trial has been characterised in numerous High Court judgments in the most forceful of terms. It has been described as “the central thesis of the administration of criminal justice”: McKinney v The Queen (1991) 171 CLR 468 at 478; as “the central prescript of our criminal law”: Jago (at 56); as a “fundamental element” or a “fundamental prescript”: Dietrich v The Queen (1992) 177 CLR 292 at 299, 326; and as an “overriding requirement”: Dietrich (at 330). It is not a new principle. As Isaacs J put it in 1923 with reference to “the elementary right of every accused person to a fair and impartial trial”: “Every conviction set aside, every new criminal trial ordered, are mere exemplifications of this fundamental principle”: R v MacFarlane; Ex parte O'Flanagan & O'Kelly (1923) 32 CLR 518 at 541–542.”

32. Thus, the Court’s power to make orders contemplated by the CSNO Act is to be understood as a strictly defined exception to a fundamental aspect of the system of justice in Australia.

33. Section 7 provides that the Court may make a suppression order or a non-publication order on “grounds permitted by this Act”. The permitted grounds are set out in s 8(1). One of the grounds is where the order “is necessary to prevent prejudice to the proper administration of justice”. The concern for the proper administration of justice in s 8(1)(a) is not limited to the proper administration of justice in the proceedings in which the application for the suppression order or non-publication order is made: Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at 65; [2012] NSWCCA 125 at [48] (Basten JA, with whom Bathurst CJ and Whealy JA agreed).

34. The requirement that the order be “necessary” takes its meaning from the context in which the word is used. In each paragraph of s 8(1) of the CSNO Act, the specified ground will be relevant to the meaning to the word “necessary”. For the purposes of s 8, the word “necessary” should not be given a narrow construction, although it is not sufficient that a suppression order or a non-publication order is merely reasonable or sensible. An order will be necessary where the consequences which will flow from it not being made are unacceptable: Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim at 56; [8] (Bathurst CJ, with whom Whealy JA agreed) and 64; [46] (Basten JA).
    In R v BB at [20]-[21], Rothman J used the language of “reasonably required” but “not essential”.

35. Section 15 of the CSNO Act provides an exception to compliance with a suppression order. Section 15 provides as follows:

15 Disclosures that are not prevented by suppression orders

(1)    A suppression order does not prevent a person from disclosing information if the disclosure is not by publication and is in the course of performing functions or duties or exercising powers in a public official capacity—

(a)    in connection with the conduct of proceedings or the recovery or enforcement of any penalty imposed in proceedings, or

(b)    in compliance with any procedure adopted by a court for informing a news media organisation of the existence and content of a suppression order or non-publication order made by the court.

(2)    A suppression order does not prevent the disclosure of information to the Bureau of Crime Statistics and Research if the disclosure is not by publication and the disclosure is made for the purposes of the compilation of statistical data about crime and criminal justice.

36. Parliament has provided sanctions for failure to comply with a suppression order or a non-publication order made under the CSNO Act. Section 16(1) provides that it is an offence if a person engages in conduct that constitutes a contravention of a suppression order or a non-publication order and is reckless as to whether the conduct constitutes the contravention, for which a penalty is prescribed in terms of penalty units and a period of imprisonment. Section 16(2) provides that conduct that constitutes an offence under s 16 may be published as a contempt of court even though it could be punished as an offence, and vice versa (s 16(3)). However, a person is not liable to be punished twice (s 16(4)). Proceedings for offences are provided for in s 17.

37. There is nothing in the CSNO Act which is specific to the protection of the interests of the children.

Application in these proceedings

38. The plaintiff makes the application pursuant to a Notice of Motion filed on
    13 August 2024 in which six orders were sought by which the names of the plaintiff and her two children generally be replaced with pseudonyms. Orders were also sought in relation to redaction of certain documents.

39. The bases upon which the orders were sought are the Court’s power under
    s 7 of the CSNO Act or, alternatively, in the inherent jurisdiction of the Court. Any power the Court otherwise has in its inherent jurisdiction is not affected by the CSNO Act: s 4.

40. In support of the application, a short Affidavit was read from the plaintiff’s solicitor by which the ages of the plaintiff’s children and their bail status are proved. The solicitor also explains that the reason why orders are being sought under the CSNO Act is “to give coherence to s 15A of the
    [CCP Act]”. There is also evidence of media interest in these proceedings.

41. At the hearing of the application on 27 September 2024, Short Minutes of Order were handed up in which modified orders were sought in the following terms:

“1 Pursuant to s 7(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (the Act) and on the grounds set out in s 8(1)(a) of that Act:

(a)   the publication or other disclosure of any information that reveals or tends to reveal:

(i)   the identity of the plaintiff;

(ii)   the identity of two of the plaintiff’s sons described in the Statement of Claim filed 2 April 2024; and

(iii)   the residential address of the plaintiff,

is prohibited;

(b)   the plaintiff:

(i)   except as may be necessary for the proper conduct of these proceedings, shall be known as “MA” in connection with these proceedings;

(ii)   shall be described in all pleadings and other documents filed or served in these proceedings as “MA”;

(c)   the plaintiff’s eldest son:

(i)   except as may be necessary for the proper conduct of these proceedings, shall be known as “MB” in connection with these proceedings;

(ii)   shall be described in all pleadings and other documents filed or served in these proceedings as “MB”;

(d)   the plaintiff’s second eldest son:

(i)   except as may be necessary for the proper conduct of these proceedings, shall be known as “MC” in connection with these proceedings;

(ii)   shall be described in all pleadings and other documents filed or served in these proceedings as “MC”;

(e)   the plaintiff’s name, the plaintiff’s two sons’ names, and the plaintiff’s residential address is to be redacted from all versions of the pleadings in these proceedings accessible by non-parties.

2   Order 1 shall apply for a period of 99 years from the date of this order and anywhere in the Commonwealth.”

42. The defendant neither consents to nor opposes the plaintiff’s application.

The plaintiff’s submissions

43. The plaintiff’s application under the CSNO Act relies solely on the ground specified in s 8(1)(a): that the orders are necessary to prevent prejudice to the proper administration of justice. In writing, the plaintiff also relies upon the ground in s 8(1)(e), but in oral submissions it was accepted that that alternative ground took the plaintiff’s argument no higher than a need to prevent prejudice to the proper administration of justice.

44. The plaintiff accepts that by virtue of the operation of s 15A(1)(a) of the CCP Act, there already exists a prohibition on the publication or broadcast of the names of the plaintiff and her two sons and the plaintiff’s address in regional New South Wales.

45. The plaintiff submits, however, that s 15A of the CCP Act “does not apply to civil proceedings”. The authorities relied on for that proposition are: R v AB (No 1) [2018] NSWCCA 113, State of New South Wales v Plaintiff A [2012] NSWCA 248 and Nationwide News Pty Ltd v JS and SD [2022] NSWSC 774. It is submitted that an order under the CSNO Act needs to be made in these civil proceedings to achieve “coherence” between these civil proceedings and any criminal proceedings to which s 15A applies, including the bail proceedings. It is submitted that the proper administration of justice requires there be coherence in the law. The prohibition in s 15A would be rendered futile if the identity of the plaintiff’s sons in connection with their alleged criminal conduct could be disclosed simply because the plaintiff has brought civil proceedings which relate to that conduct.

46. The plaintiff submits that the “need for coherence with s 15A is not simply academic” because there has been some media interest about these civil proceedings. It is submitted that if orders are not made under the CSNO Act, there is a not insignificant risk that the prohibition imposed by s 15A will be “undermined” in this case.

47. As an alternative to the Court’s power under s 7 of the CSNO Act, the plaintiff submits that the orders may be made in the Court’s inherent jurisdiction. Submissions were made which demonstrate overlap between the two sources of power, particularly in relation to the concept of necessity and the concerns for the proper administration of justice and coherence in the law.

48. The plaintiff submits that the making of orders in this case is supported by the approach taken by the Court in Plaintiff A v Bird; Plaintiff C v Bird [2015] NSWSC 570, DM v Life Without Borders [2016] NSWSC 1536 and State of New South Wales v Tina Lee (a pseudonym) [2023] NSWSC 693.

Determination

49. As the plaintiff accepted, the prohibition in s 15A of the CCP Act applies of its own force and in accordance with own terms. As set out above, the plaintiff accepts that by virtue of the s 15A prohibition there already exists a prohibition on the publication or broadcast of the names of the plaintiff and her two sons and the plaintiff’s address.

50. In order to address the submission that s 15A of the CCP Act “does not apply to civil proceedings”, the terms of that provision need to be considered. The substantive prohibition in s 15A(1)(a) is:

“[T]he name of a person must not be published or broadcast in a way that connects the person with criminal proceedings if the proceedings relate to the person and the person was a child when the offence to which the proceedings relate was committed.”

51. As set out above, the concepts of publish and broadcast are addressed in more detail in ss 15A(2) and15A(3). Those provisions address aspects of conduct which will constitute publishing or broadcasting, but they do not limit the occasion of and the context in which the prohibited publishing or broadcasting may occur. If publishing or broadcasting as contemplated by ss 15A(2) and 15A(3) occurs and has the prohibited quality specified in s 15A(1), it does not matter on what occasion and in what context the publishing or broadcasting occurred.

52. The only exceptions to this are in s 15B which provides that the prohibition does not extend to publication or broadcasting of an official report of the proceedings of a court, and in s 15G which provides that the prohibition does not apply if the publication or broadcasting is done by a person in the proper exercise of official functions as a member of staff of a registry or other office of the Court in connection with the conduct and determination of criminal proceedings.

53. Otherwise, the publishing or broadcasting of the person’s name is prohibited if it is done “in a way that connects the person with criminal proceedings”. The CCP Act does not further specify how publishing or broadcasting of a person’s name may connect the person with criminal proceedings. The words in s 15A(1) are to be given their natural meaning. They are not to be construed narrowly, especially in circumstances where the purpose of the prohibition is to protect the anonymity of children.

54. There might be any number of different ways in which publication or broadcasting of a person’s name connects the person with criminal proceedings. It may occur in the publication or broadcasting of information about the criminal proceedings with which the person’s name is thereby connected. It may occur in other ways, such as the publication or broadcasting of information about proceedings which are different to the criminal proceedings with which the person’s name is nonetheless thereby connected. It may occur in the publication or broadcasting of information about no particular proceedings or no proceedings at all. All that is required by s 15A(1) for the prohibition to be contravened is that the way in which the publication or broadcasting of the person’s name is done is a way that connects the person with criminal proceedings.

55. Section 15A does not apply to civil proceedings in the sense that there is no prohibition on the publication or broadcasting of a person’s name in a way that connects the person with civil proceedings. However, subject to the exception and s 15B, the publication or broadcast of a person’s name in the context of or on the occasion of civil proceedings will contravene s 15A if it is done in a way that connects a person with some other criminal proceedings.

56. None of the cases referred to by the plaintiff say otherwise.

57. R v AB (No 1) [2018] NSWCCA 113 arose when suppression and non-publication orders under s 7 of the CSNO Act were made in criminal proceedings before the District Court. The Crown appealed against the orders. In the Court of Criminal Appeal, the dispositive question was whether the orders were necessary. The respondent contended that they were necessary for the purposes of s 8(1)(a) “to ensure compliance with” s 15A of the CCP. Meagher JA, with whom Rothman and Garling JJ agreed, rejected the argument at [38]. Even though there was evidence of some contraventions of s 15A in that case, Meagher JA said that s 15A provided its own remedy for a contravention of the prohibition and that the CCP Act should be allowed to operate according to its terms, including the sanctions which Parliament has prescribed. Meagher JA stated that civil proceedings “did not attract the application of” s 15A, but only to distinguish the criminal proceedings before the Court in R v AB (No 1) from civil proceedings like Plaintiff A v Bird; Plaintiff C v Bird and DM v Life Without Barriers (civil proceedings) (see below). It was not necessary for the Court to consider whether orders might be necessary in civil proceedings in order to ensure that the name of a person not be published or broadcast in a way that connects the person with criminal proceedings contrary to s 15A.

58. State of New South Wales v Plaintiff A [2012] NSWCA 248 was a civil proceeding in which suppression and non-publication orders were sought under the CSNO Act. The plaintiff in those proceedings sued the State because of a sexual assault he allegedly suffered at the hands of fellow students when he was at school. In outlining the parameters of the CSNO Act, Basten JA, with whom Beazley and Hoeben JA agreed, observed at [93] that the names of the plaintiff and the fellow students would be subject to the prohibition under s 15A of the CCP Act “if criminal proceedings were involved”. There were no criminal proceedings in Plaintiff A’s case. There was no occasion therefore for Basten JA to consider whether orders under the CSNO Act might be necessary where related criminal proceedings were on foot and the s 15A prohibition enlivened by those criminal proceedings. There is nothing in Plaintiff A’s case which supports the making of the orders sought by the plaintiff.

59. Nationwide News Pty Ltd v JS and SD [2022] NSWSC 774 was a first instance decision of Basten AJ. The proceedings arose after a Local Court Magistrate made suppression and non-publication orders in proceedings brought by the police for an apprehended violence order against the foster parents of a child who was alleged to be the person in need of protection. The police also brought assault charges against the parents in which the child was identified as the victim. Section 14 of the CSNO provided that an appeal lay against the Magistrate’s orders. Basten AJ heard the appeal.

60. The underlying purpose of the Magistrate’s suppression orders was not to protect the anonymity of the foster child but to protect the foster parents from unwanted media attention in response to an upsurge in abusive posts on social media and the possibility of threats to their physical safety. As such, the suppression orders served a purpose which was distinct from the purpose of
    s 15A(1) which, relevantly, is to ensure that a child’s name is not connected with criminal proceedings. Basten AJ set aside the Magistrate’s orders but replaced them with different orders under the CSNO Act. When considering whether new orders should extend to protect the foster child, Basten AJ referred to the prohibition already in place under s 15A(1) of the CSNO Act and said at [53]-[54]:

“53 While it is true that forms of disclosure between individuals otherwise than electronically will not constitute publication or broadcasting within the terms of s 15A, it is not clear that such protection is necessary for the protection of the child. Principles relating to the protection of the identity of children should be governed primarily by the specific legislation relating to children in criminal proceedings, unless there are specific circumstances which warrant further protections. I am not satisfied that there are any specific circumstances relating to the victim of the alleged assaults which would warrant additional protection.

54 On the other hand, s 15A operates only in criminal proceedings; it does not extend to disclosures in other proceedings, including the present proceeding. That requires an order with respect to the present proceeding.”

61. Basten AJ did not consider, nor was his Honour required to consider, whether “disclosures in other proceedings” might constitute publication or broadcast of the name of a child in a way that connects the child with criminal proceedings. The issue before Basten AJ was the making of orders to protect the parents and of which protecting the anonymity of the foster child was an incidental part. There was no suggestion in that case that orders were required under the CSNO Act in order to ensure compliance with s 15A.

62. The plaintiff submits that there are a number of first instance decisions of the Court in which orders were made under the CSNO Act to “give coherence” with s 15A(1). The first case relied upon is Plaintiff A v Bird; Plaintiff C v Bird [2015] NSWSC 570. These were civil proceedings brought by a child and its mother for loss allegedly suffered as a result of a sexual assault on the child by the defendant. The plaintiff made an application for suppression and non-publication orders under the CSNO Act. There were no related criminal proceedings and no question arose as to an existing prohibition under s 15A(1). In an extemporaneous judgment at [10], McCallum J observed that, although s 15A(1) was inapplicable, the content of the statutory prohibition ought to inform in the proper exercise of the discretion to make orders under the CSNO Act. The s 15A prohibition was drawn upon as an analogy. It was in that sense that her Honour observed at [16] that the provisions of the CSNO Act ought to be read in a manner which “gives coherence to” s 15A(1). There is nothing in the judgment which suggests that orders might be made under the CSNO Act in order to ensure compliance with s 15A(1).

63. DM v Life Without Barriers [2016] NSWSC 1536 were civil proceedings which concerned the sexual assault of a child. It is unclear whether there were related criminal proceedings. Schmidt J referred to the judgment of McCallum J above and said at [6]:

“The evidence to which I will now turn, also satisfies me that an order should be made in this case under the Court Suppression and Non-Publication Orders Act, to ensure that the identity of the plaintiff is not inadvertently disclosed, contrary to what is intended by the Children (Criminal Proceedings) Act.”

64. It is unclear from this passage whether her Honour made orders under the CSNO Act in order to provide the child with the same protection in relation to the civil proceedings which it would have had under s 15A(1) in relation to criminal proceedings. In any event, her Honour did not address the question of necessity and was not referred to the New South Wales Court of Appeal decisions referred to below.

65. The final case relied upon by the plaintiff is State of New South Wales v Tina Lee (a pseudonym) [2023] NSWSC 693. These were proceedings brought by the State against the defendant under the Crimes (High Risk Offenders) Act 2006 (NSW) in which the State sought an extended supervision order against the defendant. The defendant applied for orders under the CSNO Act. At [8]-[10], Dhanji J said:

“Pseudonym order

8 As a preliminary matter, the defendant seeks a pseudonym order in respect of the defendant's name pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW). It was submitted on behalf of the defendant that, pursuant to s 8(1)(a), "the order is necessary to prevent prejudice to the proper administration of justice". The plaintiff did not oppose the making of such an order.

9   The material relied upon by the plaintiff includes various documents that refer to criminal proceedings before the Children's Court. Further, the material relied upon by the plaintiff includes various documents that refer to care proceedings before the Children's Court and identify the defendant as a person who was a "state ward", that is, a person in the care of the relevant minister.

10 Section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) and s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) respectively apply, without further order of the Court, to prohibit publication or broadcasting of the name of the defendant in any way that would identify her in relation to those matters. In order to give effect to those two provisions, I am satisfied that it “is necessary to prevent prejudice to the proper administration of justice” that an order for a pseudonym be made. The defendant will be identified by the pseudonym “Tina Lee”.”

66. It may be inferred from paragraphs [9] and [10] that there were criminal proceedings by virtue of which the s 15A prohibition was enlivened and the defendant protected thereby. Dhanji J made the suppression and non-publication orders “in order to give effect to” s 15A(1), his Honour being satisfied the orders were necessary to prevent prejudice to the proper administration of justice. Given the existing prohibition in s 15A(1), the necessity for the pseudonym order in the proceedings before Dhanji J is not apparent from the judgment. His Honour did not address the question of necessity and was not referred to the New South Wales Court of Appeal decisions referred to below.

67. Of these three decisions, the judgment of Dhanji J in State of New South Wales v Tina Lee (a pseudonym) is the only one arising from facts similar to the facts in the case currently before the Court. It is the only case where the application for suppression and non-publication orders was made in civil proceedings in order to protect the name of a child being connected with related criminal proceedings. None of the three decisions, including State of New South Wales v Tina Li (pseudonym), establishes that compliance with existing obligations under s 15A of the CCP Act is always a ground for making suppression and non-publication orders for the purposes of s 8(1)(a) of the CSNO Act. On the facts of each case, it is still necessary to consider whether the making of the orders is “necessary” to prevent prejudice to the proper administration of justice.

68. In this context, the fact that the sole purpose for which the plaintiff seeks orders under the CSNO Act is to give coherence to the prohibition which is already in operation under s 15A(1) tells against the orders being necessary to prevent prejudice to the proper administration of justice. The plaintiff accepts that she does not intend by the orders to prohibit anything which is not already prohibited.

69. The fact that suppression and non-publication orders are not necessary in this case is demonstrated by DC v State of New South Wales [2010] NSWCA 15. That was a civil proceeding brought subsequent to the defendant’s conviction for sexual offences against his two stepdaughters. The victims were children at the time the offences were committed and hence, the prohibition in the predecessor to s 15A(1) applied (s 11(1)). Suppression and non-publication orders were nonetheless made by the trial judge in the civil proceedings.

70. Sackville AJA, with whom McColl and Basten JJA agreed on appeal addressing those orders at [20]-[21] and said:

“20 In August 2005, several years before the present proceedings were instituted, the stepfather was found guilty in the District Court of a number of sexual offences committed against the applicants. Each of the applicants gave evidence at the stepfather’s trial (although he ultimately pleaded guilty to the charges). Since the applicants were children at the time of the offences, s 11(1) of the Children (Criminal Proceedings) Act 1987 (“C (CP) Act”) had the effect, without the need for any court order, that the names of the applicants could not “be published or broadcast in a way that connects [them] with the criminal proceedings”: see s 11(1)(a), (b). (Section 11 of the C (CP) Act was repealed by the Children (Criminal Proceedings) Amendment (Naming of Children) Act 2009. However, the 2009 Act introduced s 15A into the C (CP) Act, which is in very similar terms to s 11: see now s 15A(1)(a), (b).)

21 In view of s 11(1) of the C (CP) Act, it was appropriate and indeed necessary for pseudonyms to be used in the present proceedings to ensure that the names of the applicants were not connected with the criminal proceedings. The primary Judge in the present case did not need to make a non-publication order under s 72 of the CP Act, since s 11 of the C (CP) Act operates of its own force. Nonetheless, making the order perhaps had the advantage of drawing the attention of any observer of the proceedings to the importance of not publishing the names of the applicants. In any event, it is appropriate that this Court continue referring to the applicants by their pseudonyms.”

71. It is clear from this passage that whilst there may be an advantage to making suppression or non-publication orders in such a case, it is not necessary. As set out above, ss 7 and 8 does not empower the making of orders merely because they are reasonable or sensible: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim at [8] (Bathurst CJ). They must be necessary.

72. In any event, the question whether suppression and non-publication orders are necessary is to be considered having regard to alternative measures which are available to the parties and the Court to achieve the same objective. For example, in Application by John Fairfax Publications Pty Ltd re MSK, MAK, MMK and MRK [2006] NSWCCA 386 the Court referred at [27] to making directions to draw attention to the obligation already imposed by s 15A(1) and indicating the manner in which the Court proposes to give effect to it. The Court may direct that the name of the proceedings be changed and that initials or other pseudonymic references be adopted for certain persons. The Court may also direct that any application by a non-party for access to the Court file not be granted without the parties first being notified and being allowed an opportunity to be heard. Even if it were otherwise necessary, such measures can be implemented in this case so that suppression and non-publication orders will not be necessary.

73. Not only will suppression and non-publication orders be unnecessary in this case, they would be inappropriate. Making orders in civil proceedings which have as their objective no more than is already achieved by s 15A(1) may prejudice the administration of justice. Orders made in such circumstances run the risk of giving rise concurrently to regimes of regulation which are similar but not exactly the same. It may be potentially confusing for anyone obliged to comply with both regimes. This is apparent from Application by John Fairfax Publications Pty Ltd re MSK, MAK, MMK and MRK [2006] NSWCCA 386 which were criminal proceedings in which some of the offenders were children. Under the predecessor of s 15A(1), there was a prohibition on the publication or broadcast of the names of the children (and others) in a way that connected them to the criminal proceedings. The trial judge nonetheless ordered that the defendants be referred to only by their initials pursuant to s 292 of the Criminal Procedure Act 1986 (NSW). At that time, s 292 provided:

292 Publication of evidence may be forbidden in certain cases

(1)    In any proceedings against a person for an offence to which this Division applies, the court may from time to time make an order forbidding publication of the whole or any part of the evidence tendered in the proceedings or of any report or account of that evidence.

(2)    If the prosecutor or the accused person indicates to the court that it is desired that any particular matter given in evidence should be available for publication, no such order is to be made in respect of that matter.

(3)    Any person who contravenes an order under this section is guilty of a summary offence and liable to a maximum penalty of 20 penalty units.

(4)    This section is subject to any Act or law under which evidence relating to a child under the age of 18 years, or a report or account of that evidence, may not be published.

74. In considering whether to vary the trial judge’s order under s 292, at [26]-[29], Spigelman CJ, with whom Basten JA and Hislop J agreed, referred to the predecessor of s 15A(1) and said:

“26 Section 11(1) of the Act is self-executing. The prohibition contains its own penalty in subs(3), its own exclusions in subs(4) and a mechanism for the application of those exclusions in subss(4A)-(4E). It is unnecessary and, generally, would be inappropriate, for the Court to make an order for the purpose of serving the same policy objectives as the scheme for which Parliament has legislated in s11.

27 It is not uncommon for the courts to make orders requiring the use of pseudonyms in cases involving children, as if to give effect to the terms of s11(1) of the Act. Section 11 confers no power to make such an order. The power may be found elsewhere, but the order itself is otiose. However, non-publication orders and pseudonym orders can be made for other purposes. This could include, as apparently was the case at the time that Sully J and Hidden J made their orders, the objective of ensuring a fair trial in subsequent proceedings for other offences, or in view of the prospect of an appeal and a new trial, with respect to the same offences. To avoid confusion, it would be preferable if a court, concerned to make the public and media aware of the operation of s11, gave directions drawing attention to the obligation imposed by the section and indicating the manner in which the court proposed to give effect to it. If there were a separate application for a non-publication order, that could then be addressed on its merits and the Court would no doubt identify the purpose which made the order appropriate, quite apart from the statutory prohibition imposed by s11.

28 As set out above, s11(4)(a) makes it clear that there is no prohibition on the publication of an official report of proceedings by the Court, which report would in the normal course contain the names of the accused, including in the very title of the case. Courts have adopted a practice of publishing only the initials of offenders, often to protect the identity of the complainants. However, courts have also adopted such a practice with a view to ensuring that the policy objectives of s11(1) of the Act are in fact served. Publication in digital form of the judgments of the Supreme Court on the Court’s website are, by their very nature, capable of such widespread transmission that the policy objective of the Act could readily be undermined unless the Court adapted its procedures in the way it does. Such a practice does not, however, justify an order in the same terms directed to third parties.

29 The Court should not, in the normal course, make orders of this character which carry with them the prospect of contempt proceedings of a character parallel to any proceedings for a contravention of s11 of the Act. In my opinion, in the normal case where no issue or purpose is to be served by an order other than the purpose of protecting the identity of a child, for which s11 makes provision, then a non-publication order should not be made. The Act should be allowed to operate in accordance with its terms and with the sanctions which Parliament has prescribed.”

75. The inappropriateness of making suppression and non-publication orders under the CSNO Act for no purpose other than to achieve the protection already afforded by s 15A(1) is apparent from a comparison of the terms of the two statutory regimes. The definition of “publish” in s 3 of the CSNO Act is set out above. A non-publication order is an order which prohibits or restricts the publication of information. Section 15A(1) prohibits the publication of the person’s name, but only in the circumstances specified in ss 15A(2) and (3). Both provisions are both broad but they may not cover exactly the same conduct. In particular, under the definition in the CSNO Act publish means “disseminate or provide access to” whereas s 15A(3) of the CCP Act refers to providing “the opportunity for, or facilitates or enables, dissemination of information”. That difference is just an example. It may be in practical terms that the two regimes will operate harmoniously in any particular case. But the consequences for non-compliance are severe and the burden of having to comply with both regimes simultaneously should not be imposed lightly.

76. In this respect, Parliament has specified the sanction for non-compliance with s 15A(1), namely the penalty specified in s 15A(7). Under s 16(1) of the CSNO Act, non-compliance with a suppression order or a non-publication order is also an offence for which a significantly different penalty is specified. Section 16 also contemplates that non-compliance with a suppression or non-publication order will be a contempt of court but precludes double punishment. The two regimes of sanctions may not operate consistently where particular conduct contravenes both the s 15A(2) of the CCP Act prohibition and an order which has been made under s 7 of the CSNO Act.

77. Having regard to these matters, making suppression and non-publication orders in this case is unlikely to achieve the plaintiff’s stated goal of giving coherence to s 15A of the CCP Act.

78. It should also be noted that the regime in Division 3A of the CCP Act is intended specifically to protect children whereas the regime for the making of suppression and non-publication orders under the CSNO Act is of general application. As Basten AJ said in Nationwide News Pty Ltd v JS and SD at [53], principles relating to the protection of the identity of children in criminal proceedings should be governed primarily by the legislation specifically enacted for that purpose, unless there are specific circumstances which warrant further protections. His Honour said at [25]:

“Secondly, although counsel for the media organisations supported the agreed orders, he noted, correctly, that it was inappropriate to make non-publication orders with respect to the name of the victim or complainant in circumstances were there was statutory protection for a complainant under s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). As Spigelman CJ explained in Application by John Fairfax Publications Pty Ltd re MSK, MAK, MMK and MRK, [6] a court should not normally make orders under the Suppression Orders Act to work in tandem with a statutory non-publication order in relation to the names of children, because to do so could invoke two separate penalties for breach. Further, such an order invites confusion as it will almost certainly not mirror the statutory terms with precision.”

79. The power of the Court to make suppression and non-publication orders under s 7 of the CSNO Act is discretionary. An important consideration in the exercise of that discretion is whether the making of any particular suppression or non-publication order is inappropriate having regard to the principles set out above.

80. For the reasons set out above the orders sought in the plaintiff’s Notice of Motion filed on 13 August 2024 should not be made, either because the plaintiff has not established one of the permitted grounds specified in s 8(1) of the CSNO Act or because the orders are inappropriate and ought not be made in the exercise of the Courts discretion under s 7. For the same reasons, the orders set out in the plaintiff’s Short Minutes of Order ought not be made.

81. The Plaintiff’s alternative reliance on the inherent jurisdiction of the Court does not warrant a different result. Essentially for the same reason as set out above, in circumstances where the s 15A prohibition is enlivened and directions may be made as set out below, the Plaintiff has not demonstrated that it is necessary or appropriate for the Court to make the orders sought in the Notice of Motion or the Short Minutes of Order pursuant to the inherent jurisdiction of the Court.

82. The plaintiff has, however, demonstrated the appropriateness of the Court making a number of directions in the terms set out below.

Order and direction

83. The Court orders that:

1. The plaintiff’s Notice of Motion filed on 13 August 2024 be dismissed.

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

84. The Court further directs that:

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

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

1. for the plaintiff, MA;

2. for the plaintiff’s eldest son, MB; and

3. for the plaintiff’s second eldest son, MC;

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

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

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Decision last updated: 29 October 2024