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Moseley v AB

Moseley v AB

Case [2017] NSWSC 916 11 July 2017

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Supreme Court

New South Wales

Medium Neutral Citation: Moseley v AB [2017] NSWSC 916
Hearing dates: 27 February; 16 May 2017
Date of orders: 11 July 2017
Decision date: 11 July 2017
Jurisdiction: Common Law
Before: Walton J
Decision:
In the course of the proceedings the Court stated, with the concurrence of the parties, that the question of the form of orders would be held over until the determination of the merits of the motion, particularly having regard to issues concerning the duration of the orders.

In the result, AB shall file and serve short minutes of order identifying any variation to the orders sought in the motion in accordance with terms of this judgment, together with written submissions in support thereof within 7 days of publication of this judgment. The Intervenor shall file written submissions in reply no later than 7 days after the service of the short minutes of order and written submissions by AB. The matter may be listed for oral submissions upon application by either party in their written submissions filed in accordance with these directions or if that course is considered appropriate by the Court.
The interim suppression order shall continue until final orders are made by the Court.
Catchwords: ORDERS – suppression and non-publication orders – final orders sought under s 7 – prohibiting the publication of any material which is capable of identifying the second defendant – principles of open justice – safety ground, s 8(1)(c) – construction of s 8(1)(c) – meaning of necessary – probability of harm construction – imminence of harm construction – probability of harm if orders not made – orders necessary to protect safety of a person – nature and degree of the likelihood of harm – nature of the risk– imminence of harm – suppression or non-publication order found necessary to protect safety – form of orders subject to submissions – directions
Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 (NSW)
Evidence Act 1995 (NSW)
Federal Court Act 1976 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Ashton v Pratt [2011] NSWSC 1092
Boughey v The Queen (1986) 161 CLR 1; [1986] HCA 18
Commission of the Australian Federal Police in Zhao (2015) 255 CLR 46; [2015] HCA 5
D1 v P1 [2012] NSWCA 314
Fairfax Digital v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21
John Fairfax & Sons Pty Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465
Liu v The Age Company [2010] NSWSC 1176
Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 65
New South Crime Commission v Vu [2009] NSWCA 349
Rinehart v Welker [2011] NSWCA 403
State of NSW v Kay [2017] NSWSC 274
Wily v Terra Cresta Business Solutions Pty Ltd [2006] NSWSC 949
Woodcroft-Brown v Timbercorp Securities Ltd [2013] 96 ACSR 307; [2013] VSCA 284
Category: Procedural and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Moseley v AB

Details

AGLC: Moseley v AB [2017] NSWSC 916
Case: [2017] NSWSC 916
Decision Date: 11 July 2017

CaseChat Overview and Summary

The case of Moseley v AB involved a legal dispute between the plaintiff, Mr Moseley, and the second defendant, represented by AB. The matter was heard in the Federal Court of Australia, where the plaintiff sought final orders under section 7 of the Federal Court of Australia Act to prohibit the publication of any material that could identify the second defendant. The plaintiff contended that the publication of such information posed a significant safety risk to the second defendant.

The primary legal issues before the court were the construction of section 8(1)(c) of the Federal Court of Australia Act, which pertains to the necessity of orders to protect the safety of a person, and the principles of open justice. The court had to determine whether the orders sought were necessary to protect the safety of the second defendant and whether these orders were consistent with the principles of open justice. The court considered the probability and imminence of harm if the orders were not made, as well as the nature and degree of the likelihood of harm.

The court found that the orders were necessary to protect the safety of the second defendant. It interpreted section 8(1)(c) in a manner that balanced the principle of open justice with the safety considerations. The court adopted a probability of harm construction, determining that there was a significant likelihood that the publication of the second defendant's identity would result in harm. Additionally, the court considered the imminence of the harm, finding that the risk was not only probable but also imminent. The court concluded that the suppression or non-publication orders were necessary to prevent the anticipated harm. The form of the orders would be subject to further submissions, and the court provided directions for the next steps in the proceedings.

Orders