McGinn v Cranbrook School (No 2)

[2015] NSWSC 1485

Supreme Court

New South Wales

Medium Neutral Citation:

McGinn v Cranbrook School (No 2) [2015] NSWSC 1485

Hearing dates:

2 & 8 October 2015

Date of orders:

08 October 2015

Decision date:

08 October 2015

Jurisdiction:

Common Law

Before:

Hall J

Decision:

An Order made that the proceedings on the summons filed on 22 July 2015, including the pleadings, affidavits, transcript and the Reasons for Judgment delivered on 2 October 2015, be suppressed pursuant to sections 7 and 8 of the Court Suppression and Non-publication Orders Act 2010.

 

The Order is to operate throughout the Commonwealth of Australia and is to continue to operate until further order of the Court.

 The Suppression Order does not apply to this judgment

Catchwords:

PROCEDURE – civil – application for strike out or summary dismissal – whether proceedings were frivolous or vexatious – whether pleadings disclosed reasonable cause of action – no reasonable cause of action disclosed – proceedings summarily dismissed pursuant to UCPR r 13.4(1)

SUPPRESSION ORDERS – previous judgment in proceedings suppressed until date of adjourned hearing under Courts Suppression and Non-Publication Orders Act 2010 – reasons for suppression – further suppression order under s 8 of the Act made to continue until further order – consideration of what interests of justice required in the circumstances of the case – the need to protect the interest of an under-aged person (a minor) against direct or indirect identification through publication of the proceedings constituted an interest that outweighed the open-justice-principle

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010

Cases Cited:

Rinehart v Welker [2011] NSWCA 403

Category:

Consequential orders (other than Costs)

Parties:

Sophia McGinn (Plaintiff)
Cranbrook School (Defendant)

Representation:

Counsel:
Self-Represented (Plaintiff)
J Watson; R May (Defendant)
A Dawson (Defendant)

  Solicitors:
Self-Represented (Plaintiff)
Fraser Clancy Lawyers (Defendant)

File Number(s):

2015/214153

Judgment

1. These proceedings were commenced by summons filed on 22 July 2015. The plaintiff's claim was based upon alleged breach of contract by the defendant. The plaintiff's breach of contract claim pleaded a breach of duty primarily based upon statements she alleged were made to her, initially by one and then later by a second member of staff of the defendant school. The alleged statements were the subject of emails sent by her on 8 and 30 June 2015.

2. The proceedings did not otherwise allege or involve:

(1)   impropriety by conduct by any members of the staff of the defendant towards students or to any other person, or

(2)   any issue as to the conduct of the plaintiff's son, a young person. Insofar as the evidence enables any conclusion to be made concerning him, it indicates he is a young person of unblemished character.

3. Accordingly, no adverse findings could have been or were made in these proceedings with respect to any of the persons referred in (1) and (2) above.

4. Application was made by the defendant school for the dismissal of the proceedings pursuant to the Uniform Civil Procedure Rules Part 13, Rule 4(1) on the ground that the proceedings were vexatious or disclosed no reasonable cause of action or on the grounds that the proceedings were an abuse of process of the Court.

5. The application was heard and determined on 2 October 2015. On that date, I determined that the proceedings did not disclose any reasonable cause of action. That determination was made upon the application of established principles concerning summary judgment applications to the evidence adduced on the application. In particular, in that respect it was determined, firstly, that there existed no evidentiary foundation for any allegation as to repudiatory conduct by the defendant. Secondly, that the defendant undertook affirmative action in relation to matters that were raised by the plaintiff. This comprised an investigation of the matters raised by her as well as the defendant’s agreement, at a later point, to a process for resolution of the matters raised in accordance with a proposal that was advanced by solicitors who were then acting for the plaintiff, made on 18 June 2015.

6. On 2 October 2015, the Court made an order dismissing the proceedings under UCPR r 13.4(1) upon the basis that they did not disclose a reasonable cause of action. The proceedings were stood over until today in order to hear the parties on the question of the costs of the proceedings and as to the appropriate form of a continuing order to be made under the Court Suppression and Non-publication Orders Act 2010. An order under that Act was made by me on 2 October 2015 by reason of the fact that I considered, pursuant to section 8(1)(e) of the Act, that the public interest for such an order to be made outweighed the public interest in open justice having regard to the need to shield the plaintiff's son, a young underaged person.

7. Submissions were made today by Mr Dawson of counsel, who was instructed by the defendant and appeared on behalf of specified members of the staff of the defendant. Mr Dawson addressed the Court on the question of any further order that might be made under the Court Suppression and Non-publication Orders Act 2010. The Court was assisted by Mr Dawson's detailed written submissions dated 7 October 2015, submissions which Mr Watson and Mr May of counsel for the defendant had joined in supporting.

8. It is necessary, as the submissions indicated, that I have regard to the relevant provisions of the Act. They include a determination required to be made under section 8 as to the existence of grounds for making an order having regard to the importance of the open justice principle. As Mr Dawson submitted, and I accept, the relevant provisions are those in section 8(1)(c) or (e). It ultimately was accepted that, the latter, s 8(1)(e), provides the basis for the making of any further order. The interests of justice in this case require the protection of the interests of a minor (i.e. an underage person), those interests being of such importance as to outweigh any interest in disclosure in accordance with the open justice principle, and I so find.

9. It is necessary that I also consider the provisions of sections 11 and 12. I note I have been assisted by reference to the decision of the Court of Appeal (Bathurst CJ, McColl JA and Young JA) in Rinehart v Welker [2011] NSWCA 403, in particular paragraphs 26 through to 31. The making of an order in this case, as I have indicated, is necessary to do justice for the reasons I have stated. The suppression order, in accordance with section 11(2), operates so as to apply anywhere in the Commonwealth of Australia and, pursuant to section 12 of the Act, the suppression order will continue until further order of this Court.

10. Accordingly, I order that the proceedings on the summons filed on 22 July 2015, being proceedings 2015/214153 (including in particular, the pleadings, affidavits, transcript and the Reasons for Judgment delivered on 2 October 2015) be suppressed pursuant to sections 7 and 8 of the Court Suppression and Non-publication Orders Act 2010. This order is to operate throughout the Commonwealth of Australia and it is to continue to operate until further order of the Court. (It is noted that this order does not apply to this judgment, Judgment (No 2) in proceedings 2015/214153 delivered today, 8 October 2015).

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Decision last updated: 14 October 2015