Moseley v AB

[2017] NSWSC 916

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 other rulings

Parties:

Benjamin Peter Moseley (Plaintiff)
The Trustees of the Roman Catholic Church for the Diocese of Parramatta (First Defendant)
AB (Second Defendant / Applicant on Motion)
Australia Broadcasting Corporation (Intervenor)

Representation:

Counsel:
C Bolger (Plaintiff)
J Vella (First Defendant)
D R Sibtain and N Compton (Second Defendant)
M J Lewis (Intervenor)

  Solicitors:
Fordham Lawyers (Plaintiff)
Makinson d'Apice Lawyers (First Defendant)
Walter Madden Jenkins Solicitors (Second Defendant)
ABC Legal & Business Affairs (Intervenor)

File Number(s):

2015/136248

Judgment

1. By way of a further amended notice of motion filed 16 December 2016 (hereinafter referred to as “the motion”), the second defendant, known as “AB” (by order of this Court on 21 November 2016) in personal injury proceedings, applied for orders under s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (“the Act”) and for injunctive relief based upon a breach of “implied undertaking”.

BACKGROUND

2. On 7 May 2015 the plaintiff, Benjamin Peter Moseley, filed a statement of claim in which he sought damages from the Trustees of the Roman Catholic Church for the Diocese of Parramatta (“the first defendant”) with respect to allegations made against a teacher, AB, whom the plaintiff claimed had severely abused him as a student.

3. On about 3 September 2015, the plaintiff filed his statement of particulars and the first defendant filed its defence.

4. On 16 May 2016, the first defendant filed a notice of motion seeking a cross-claim against AB.

5. On 30 June 2016, AB was joined as a cross-defendant. Later, on 30 November 2016, the plaintiff was granted leave to join AB as the second defendant (by a motion filed by the plaintiff on 25 October 2016 with an accompanying affidavit attaching the proposed amended statement of claim).

6. By an amended statement of claim filed 12 December 2016, the plaintiff sought damages for breach of a duty of care said to be owed by the first defendant and AB based upon certain particularised conduct of AB concerning the plaintiff in the 1980’s and 1990’s. The plaintiff also advanced allegations concerning the conduct of AB regarding other persons.

7. Prior to the filing of the amended statement of claim the plaintiff and his solicitor provided a draft copy of the amended statement of claim to the Australia Broadcasting Corporation which became an Intervenor in the proceedings in response to suppression orders sought by the AB to restrain the ABC from broadcasting a television program covering allegations made by the plaintiff (hereinafter referred to as “the broadcast of the allegations against AB”).

8. On 17 November 2016, interim suppression orders were made by Adams J (“the interim suppression order”), which restrained the Intervenor, pending the final determination of the motion, from broadcasting such a program. The matter was stood over to 21 November 2016 to permit the applicant to place further evidence (including psychiatric evidence) before the Court to obtain an extension of the interim suppression order pending determination of the substantive application.

9. On 21 November, Adams J continued the interim suppression orders.

THE MOTION

10. The motion sought final orders pursuant to s 7 of the Act or alternatively injunctive relief based on a breach of “implied undertaking” in the following terms:

1. The second defendant be granted short service of this application.

2. An order, until further order, pursuant to s 7 of the Act, prohibiting the publication of any material which is capable of identifying the second defendant, AB, in connection with the allegations the subject of these proceedings including, without limitation:

1. the second defendant’s name or likeness;

2. any school the subject of the said allegations;

3. the name of any employer of the second defendant, from time to time; and/or

4. the name of any organisation in which the second defendant is or at any time has been involved with.

3. Further or alternatively, an order that the ABC be restrained from publishing any allegations concerning the conduct of the second defendant in connection with persons other than the plaintiff, including information concerning past employment.

4. Further or alternatively, an order that the ABC be restrained from using in any manner (including by way of publication) any information obtained (either directly or indirectly) from documents produced under subpoena or from the amended statement of claim.

5. Any other order the court sees fit.

11. The motion was opposed by the Intervenor.

12. In so far as the proposed suppression orders were concerned, AB relied solely upon s 8(1)(c) of the Act. That ground was founded exclusively upon the risk of harm to AB’s daughter (hereinafter referred to as “DD”).

13. AB sought injunctive relief to the prevent the publication of certain allegations in the amended statement of claim regarding the conduct of AB together with the conduct and actions of other persons (“the extraneous allegations”) which, on the submissions of AB, could not have been within the knowledge or understanding of the plaintiff without recourse to documents produced under subpoena. It was submitted that the amended statement of claim (in draft form) was provided the Intervenor for the purposes of the publication of the contents of the amended statement of claim including the extraneous material obtained by means of discovery.

14. AB contended that the broadcast of the information derived from the documents produced under subpoena was in breach of an implied undertaking that documents produced under compulsion in proceedings before a court will not be used for an improper or collateral purpose or any purpose outside the conduct of the proceedings: Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 at [96] (per Hayne, Hayden and Crennan JJ). The obligation binds others to whom documents are given by a party bound by the undertaking: Hearne v Street at [109]-[113].

15. The Intervenor contended the amended statement of claim fell within a qualification to the implied undertaking rule, namely, where a document is read or deemed to be read in proceedings before the Court.

16. The parties accepted that the Court need not determine the application for injunctive relief if AB had made good her application for suppression orders under s 7 of the Act. In the light of the conclusions the Court will reach in this matter in favour of the making of an order or orders of that character, upon the ground that an order is necessary to protect the safety of a person pursuant to s 8(1)(c) of the Act, it is unnecessary to determine the application for injunctive relief.

THE LEGISLATION

17. Sections 3, 6, 7 and 8(1)(c) of the Act are relevant to the disposition of this matter and were in the following terms:

3 Definitions

In this Act:

court means:

(a) the Supreme Court, Land and Environment Court, District Court, Local Court or Children’s Court, or

(b) any other court or tribunal, or a person or body having power to act judicially, prescribed by the regulations as a court for the purposes of this Act.

…

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).

party to proceedings includes the complainant or victim (or alleged victim) in criminal proceedings and any person named in evidence given in proceedings and, in relation to proceedings that have concluded, means a person who was a party to the proceedings before the proceedings concluded.

proceedings means civil or criminal proceedings.

…

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

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:

…

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

…

RELEVANT PRINCIPLES

Open Justice

18. In answering a question whether or not to make a suppression order under s 7 of the Act, the starting point for the Court should be recourse to the primary objective of the administration of justice stated in s 6 of the Act, namely, the safe guarding of the public interest in open justice: State of NSW v Kay [2017] NSWSC 274 (“Kay”) at [21]. As Bathurst CJ and McColl JA stated in Rinehart v Welker [2011] NSWCA 403 (“Welker”) at [26], the principle of legality favours a construction of the Act which, consistent with the statutory scheme, has the least adverse impact on the principles of open justice.

19. Those principles found recent affirmation in Commission of the Australian Federal Police in Zhao (2015) 255 CLR 46; [2015] HCA 5 at [44], as follows:

[44] The Commissioner suggests that protective orders could be made, which might maintain the confidentiality of evidence, and that evidence could be given in closed court. In the latter regard, the open court principle, to which the law adheres, now finds expression in s 28 of the Open Courts Act 2013 (Vic). 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. Closing the court so that the Commissioner might progress forfeiture proceedings and receive the second respondent’s evidence does not qualify as a proper reason for departing from the principle.

20. Collateral damage to others such as the children of parties disadvantaged by their parents’ names being mentioned in court proceedings is not sufficient basis, without more, to attenuate the principle of open justice, particularly as the test of necessity in s 8 of the Act, to which I will now turn, is said to require a high degree of certainty: Ashton v Pratt [2011] NSWSC 1092 at [11]; Kay at [22].

Meaning of “Necessary”

21. The operative condition for the making a suppression order under s 8 of the Act is that the order be “necessary” to do so. As their Honour’s emphasised in Welker, the word “necessary” is a strong word which together with s 6 of the Act “reinforces the legislative intention that… orders [under the Act] should only be made in exceptional circumstances, a position which prevailed at common law”: at [27].

22. In Welker, it was observed that “necessary” was the test that had been applied by the courts in the exercise of the inherent jurisdiction to make non-publication orders (see at [28]) and that the clearest statement of the test for making a suppression or non-publication order under the inherent jurisdiction was that found in John Fairfax & Sons Pty Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 (“John Fairfax”) at 476-477 (per McHugh JA with whom Glass JA agreed). The relevant passage was extracted, with emphasis added by their Honours, at [29]:

The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient.

[Original emphasis.]

23. In Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 at [31], the High Court made the following observations of the Federal Court Act 1976 (Cth) (which is in relevantly similar terms to counterpart provisions of the Act) as follows:

It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some “balancing exercise”, the order appears to have one or more of those characteristics.

24. Submissions were made by the parties as to Fairfax Digital v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125. Whilst that matter essentially concerned the operation of the provisions of s 8(1)(a) the authority does stand for the more general proposition that the meaning of “necessary” in s 8(1) depends upon the context in which it is used and, in particular, the ground or grounds in s 8 relied upon and the factual circumstances said to give rise to the order: Fairfax Digital v Ibrahim at [8] (per Bathurst CJ) and [46] (per Basten J). I consider that description more adequately described the scope of the expression “necessary” in s 8(1) of the Act than the plaintiff’s oft-stated contention in this matter that the provision was protean in nature.

The Safety Ground: s 8(1)(c)

25. The parties contended the safety ground in s 8(1)(c) had not been conclusively determined. Attention was understandably focused upon the judgment of Bathurst CJ (with whom McColl JA and McClellan CJ at CL agreed) in D1 v P1 [2012] NSWCA 314. Given the importance of this judgment to the present motion it will be convenient to extract the relevant passages at some length at [49]-[55] as follows:

[49] The first issue which arises when considering necessity is whether and to what extent an applicant for a suppression order under s 7 of the Act who relies on the ground specified in s 8(1)(c) is required to prove, on the balance of probabilities, that the order sought is necessary to protect the safety of any person, in the sense that absent the order being made it would be probable that the person in question would suffer harm. Put another way, is it a precondition to the operation of the section that as a matter of probability the person in question would suffer harm if an order was not made?

[50] On this construction of the subsection consideration must be given to the alternate ways in which the probability of harm could be prevented. In the present case if the evidence establishes that the more limited prohibition on publication ordered by the primary judge, whilst not eliminating the risk or possibility of serious injury, would have the effect of not rendering the risk that such injury would occur probable, a court would not be entitled to make a more extensive order in reliance on s 8(1)(c) of the Act.

[51] The alternative construction of s 8(1)(c) is that all the section requires is for the Court to be satisfied on the balance or probabilities that the order sought is necessary to protect a person's safety. On this construction proof of the probability of harm is not a precondition. The necessity for such an order will be informed by the nature, imminence and degree of the likelihood of harm occurring to the relevant person. If the prospective harm is very severe, it may be more readily concluded that an order is necessary even if the risk is a possibility as opposed to a probability. Once again it would seem to me that alternative steps to the making of the suppression order sought would need to be considered in determining whether the order was in fact necessary.

[52] Further, whichever construction is correct, consideration needs to be given to the utility of making the order sought. That is of particular relevance in a case such as the present, where the incident occurred in [suppressed] and where there has already been publicity of the incident, giving rise to the litigation and the fact of the litigation. It seems likely that irrespective of the order made there will be further discussion of the matter.

[53] Finally, consideration must of course be given to the nature of the threat to the safety of the particular person concerned, in this case the nature and extent of self-inflicted harm or mental distress, which would probably occur if a suppression order is not made.

[54] Not all of these matters will require consideration in every case. However, to the extent that they require assessment, they must be assessed against the requirement imposed on the Court by s 6 of the Act to take account of the fact that a primary objective of the administration of justice is a principle of open justice. Orders made under s 7 are limited to restriction on disclosure of matters in proceedings before the Court and in that sense impact on the objective in s 6. Because of the conclusions to which I have come, it is not necessary to finally determine in the present case whether and to what extent it is necessary to take that objective into account in considering whether or not to make a suppression order once one of the grounds of necessity in s 8 is made out. However, depending on the particular facts of the case, it may well be appropriate in certain circumstances to do so.

[55] For the reasons set out below it is not necessary in the present case to determine which of the alternative constructions of s 8(1)(c) of the Act is correct. On either construction of the subsection the conclusions reached by the primary judge were correct and her orders should not be disturbed

26. The Intervenor aptly described the principles stated at [49] of his Honour’s judgment as concerning “the probability of harm construction” and the observation at [51] as “the imminence of harm construction”. Before turning to those characterisations, it should be emphasised that, at [54] of the Chief Justice’s judgment, he stated that not all of the matters (referred to in the preceding paragraphs) dealing with the construction of s 8(1)(c) would require consideration in every case. However, he emphasised that, to the extent that they require assessment, they must be assessed against the provisions of s 6 of the Act.

27. I will adopt the Intervenor’s title, “the probability of harm construction”, to describe a construction of s 8(1)(c) which requires the applicant to demonstrate, on the balance of probabilities, that as a matter of probability the person in question (for the purposes of the subsection) would suffer harm if an order was not made. On this construction, consideration must be given to the alternative ways in which the probability of harm could be prevented such that if an alternative means of preventing a risk (although not necessarily eliminating the risk: see D1 v P1 at [50]) exists then a suppression order may not be made in that respect.

28. The alternative, and less onerous, construction may be described thus: what an applicant needs to do to satisfy the test of “necessity” for the purposes of s 8(1)(c) is to prove, on the balance of probabilities, that the order sought is necessary to protect a person’s safety. I will again adopt the Intervenor’s shorthand description of this construction as “the imminence of harm construction”, wherein the test of necessity would, on the reasoning in D1 v P1, be informed by the nature, imminence and degree of likelihood of harm occurring to the relevant person. If the prospective harm is severe, as the Chief Justice stated (at [51]), it may be more readily concluded that an order is necessary if the risk is a possibility as opposed to a probability. The Court would nonetheless also consider any alternative orders as to the making of a suppression order to determine whether an order was in fact necessary.

29. The Intervenor contended that the Court should prefer the probability of harm construction as being the construction most compatible with the open justice principle. In particular, it was submitted that the law had always required that suppression orders should only be made in exceptional circumstances and the derogations from the open justice principle were few and strictly defined (particular attention was drawn to Welker and John Fairfax). It was submitted to move the “bar any lower than a probability is actually is doing a violence to the section of the Act” (presumably a reference to s 6 of the Act).

30. The plaintiff contended that the imminence of harm construction was the appropriate test but that, on the facts and circumstances of the case, the plaintiff would be successful on either construction.

EVIDENCE

31. AB relied upon the affidavits of a solicitor, Susan Gai McTegg affirmed on 16 and 21 November and 13 December 2016, as well as an affidavit affirmed on 20 January 2017. AB also relied upon the report of Dr Olav Nielssen, psychiatrist, dated 14 December 2016. Dr Nielssen was not required for cross-examination.

32. No evidence was called for the Intervenor.

33. Dr Nielssen interviewed DD on 12 December 2016. He also had available to him for the purposes of preparing his report medical records, the report of a psychologist Thawhida Rangiah and accounts provided by AB.

34. No objection was taken with the report of Dr Nielssen.

35. Dr Nielssen diagnosed DD as having a probable personality disorder and a substance abuse disorder.

36. As to the first mentioned disorder, Dr Nielssen based his opinion upon the following:

The diagnosis of probable personality disorder is based on the personal history described by [DD] and the corroborative information in the documents provided, in particular, the information from her mother. [DD] would appear to meet the accepted criteria for the diagnosis of borderline personality disorder, on the basis of the history of a pattern of unstable mood and impulsive and self defeating behaviour beginning in adolescence and continuing into adult life. Features of the condition include a pattern of unstable relationships marred by conflict, markedly unstable mood with sudden severe depression and anger, impulsive behaviour, including reckless alcohol intake and binge eating, episodes of deliberate self harm and chronic dysphoria.

The diagnosis is described as “probable”, rather than confirmed, as the diagnosis of personality disorder is not reliable and should only be made after a longitudinal assessment. [DD] appears to have had periods of stability with good education and occupational performance, and relationships of up to two years in duration.

37. As to the diagnosis of substance use disorder, Dr Nielssen opined:

The diagnosis of a substance use disorder is made on the basis of [DD’s] accounts of regular hazardous alcohol intake, and her use of drugs known to have harmful psychological effects. Complications of alcohol use include the conviction for drink driving after the car accident last year, and the role of alcohol use in accentuating mood instability, episodes of self harm and other self defeating behaviour.

38. AB’s solicitors posed three questions for Dr Nielssen. Those questions and his answers, understandably, occupied a good deal of the debate in these proceedings. Accordingly they are extracted in full below:

1. Having [regard] to the history from [DD’s] mother, the information in the medical records and my own observation and diagnosis, is there a significant risk that an event such as the broadcast on national television of a programme which ventilated the allegations against [DD’s] mother would impact detrimentally on the mental health and wellbeing of [DD]?

Yes

2. If your answer to question 1 is yes, please identify the nature and extent of that impact on [DD’s] mental health and the reasons why there is a significant risk that such an impact would occur?

[DD] has a history of markedly unstable mood and a well documented tendency to over-react to any set back and to act in an impulsive and self-defeating way. She is currently in a fragile emotional state after the end of an abusive relationship. She has recently been prescribed diazepam as a calming agent. [DD] relies on her mother for support, and any perceived loss of that support would be likely to have an adverse effect on her mental health. She is acutely aware of the potential significance of the airing of the programme about the allegations against her mother.

3. If the answer to question 1 is yes, would there be any treatment available to [DD] to mitigate against the risk of any such impact, and is so, say what that treatment would be and whether and why it would be efficacious in that case of [DD], having regard to [DD’s] history and her diagnosis. In particular, give consideration to whether [DD] would respond or adhere to any treatment regime.

I have only met [DD] on the one occasion. During that consultation she was outwardly calm and seemed to be a rational person of above average intelligence. Based on my diagnosis and those observations, the recommended treatment for [DD’s] condition would be a long term supportive counselling relationship that sought to develop increased self awareness and mastery of mood swings and the tendency to over-react and misinterpret communication in interpersonal relationships. There may be [a] role for psychotropic medication to treat episodes of pervasively depressed or markedly unstable mood, or calmative medication in crises. However, there is very little research on which to base an opinion regarding the prognosis of an individual patient who has participated in counselling for this condition. Personality disorder is known to be associated with a greatly increased likelihood of suicide attempts and completed suicide, often carried out on impulse after a perceived setback. Moreover, I am unable to predict whether [DD] would respond to or adhere to treatment, as she reported that she had not cooperated with counselling during her adolescence, and although she attended the sessions with Ms Rangiah, she does not appear to have modified her alcohol use during the counselling or since.

39. The Intervenor made submissions as to the limitations of the opinions expressed by Dr Nielssen for the purposes of determining the motion. Those submissions, which will be summarised momentarily, require attention to be focused upon some particular aspects of the report.

40. It is clear from the answer to question 1, the introduction to the report and the history taken from DD, that DD understood that she was being interviewed for the purpose of preparing a psychiatric report regarding the psychological effect of broadcasting allegations against AB on national television. She did not know the full details of the story but knew that a past student was accusing her mother of “some kind of sexual assault”.

41. DD was also conscious of the implications of the broadcast describing herself as being “in media”. She indicated that a wide group of people would recognise her mother and that the “implications would last forever”.

42. In the history taken from DD, it was reported that she found it hard to believe her mother had been accused of the behaviour in question and, in that respect, her mother had not only been black and white in her moral standards but “a pillar of support for [DD] when [she] had made some questionable choices in life”. DD reported that since her father had moved she had relied on her mother for support during difficult times including a recent breakdown of a relationship. DD expressed concern for her mother identifying that she had been difficult for her mother. It was stated that she was concerned that her mother would leave the country if the story was aired, thereby affecting her situation because she relied upon her mother as her main support.

43. As Adams J referred to in Moseley No 1, by reference to the affidavit of Ms McTegg affirmed 21 November 2016, “the picture I get from the account is that her mother is the one source of emotional support in her life, though also resented and the cause of frustration, as it seems AB does not comply with the daughter’s wishes or attempt to give her advice which she does not like” (at [11]).

44. DD gave a history that she had recently “got out of a pretty toxic relationship” involving violence and emotional abuse, during which she had a car accident whilst drunk and unlicensed and had lost her job. She had spent the year of 2016 “just trying to keep her head about water” and had been prescribed diazepam “after a big meltdown” in which she got off a bus and started hyperventilating with persons helping her into a cab to go to a medical centre. It was during the course of giving this history that she referred to “cutting” herself because she was “so highly strung” and had trouble dealing with stress. There were many instances of self-harm reported to Dr Nielssen.

45. Ms McTegg’s affidavit of 21 November (hereinafter referred to as “the second McTegg affidavit”) also referred to a similar history to that given to Dr Nielssen with DD cutting herself using razor blades and knives from an early age. Recent conduct of that kind was identified.

46. In the psychiatric history DD confirmed a history of sexual interference by a baby sitter and that she had “conduct problems” from the age of 13 or 14 years when she started “going out and taking drugs” including ecstasy.

47. Dr Nielssen records DD as confirming the history of two police initiated admissions to Hornsby hospital after behaviour disturbance and threatened self-harm and referring to an “endless amount of counsellors” although not psychiatric assessment. She said her mood was very unstable and “like being constantly on a roller-coaster… in five minutes I could be totally overwhelmed by everything… I can be feeling fine and then the next minute I get a feeling in the pit of my stomach… I get depressed easily… overall there are a lot of things I am unhappy about”. It might be noted that it is recorded in the psychiatric history that, after a gap of two years, DD had resumed contact with her mother when she needed support “during her increasingly abusive relationship”.

48. I will return to the psychiatric history momentarily and pass to Dr Nielssen’s reference to a history of substance abuses. He records DD drinking substantial amounts of alcohol and smoking marijuana in DD’s teenage years as well as intermittently taking “MDMA” during adolescence and adult life. She had resumed drinking heavily and taking marijuana in her adult life.

49. Dr Nielssen referred to the report of Mr Rangiah, in which it was stated DD was referred to him for anxiety in depression, had a significant alcohol problem and attended eight consultations. She was recorded as having a pattern of unstable and impulsive behaviour in adolescence.

50. Returning to the psychiatric history, Dr Nielssen reported a particularly severe and recent occurrence, casting a light on the propensity of DD to self-harm (in that case suicidal thoughts), as follows:

She reported numerous episodes of self harm, but said “last Thursday [after hearing about the mother’s situation] I was thinking about stepping out in front of a bus… I have thought about it quite regularly… I have thought plans as to where and when… with the roller-coaster I am not thinking about it at the moment… but with everything that’s going on now it could change suddenly”.

51. The second McTegg affidavit also referred to DD having “threatened suicide” (at [31]). However, given its form and my later discussion of evidence adduced on an information and belief basis, the evidence should attract little weight.

52. There is a further aspect of Ms McTegg’s evidence which requires a mention in the light of the record of suicidal thoughts in Dr Nielssen’s report. In Ms McTegg’s affidavit on 20 January 2017 (hereinafter referred to as “the fourth McTegg affidavit”), she deposed, that she had been instructed by AB, that AB had arrived at DD’s home on 21 December 2016 at 4 pm to find her daughter in bed. She found an empty pill bottle and was informed by her daughter that she had taken eight valium tablets. After contacting the hospital she was advised to call an ambulance and that it was the hospital’s protocol to call the police.

53. It was also deposed that she was informed that the ambulance and police arrived at about 4.30 pm, DD was abusive towards the police and said “I have a border-line personality disorder, I have no hope of any sort of life so I might as well end it”. DD was taken by ambulance to Royal North Shore Hospital from which she discharged herself at 10.30 pm.

54. DD had commenced treatment with a clinical psychologist who specialised in “dialectical behavioural therapy”. After the first session, DD stated “this is hopeless, I will not continue to attend treatment”.

55. The evidence described in the previous three paragraphs of this judgment (“the three passages”) and other aspects of the second and fourth McTegg affidavits were deposed upon an information and belief basis. This evidence was objected to by the Intervenor but not on the basis of a particular submission devoted to the three passages. For economy of time, the evidence was dealt with on the basis that the Intervenor had made objections to the passages and it was admitted consistently with earlier rulings.

56. The three passages (and other aspects of the evidence of Ms McTegg discussed under this heading) were caught by a global position adopted by the Intervenor, namely, the Intervenor objected on the grounds that the evidence was a conclusion, but it was agreed that a ruling could nonetheless be made to accept the evidence, to use the shorthand expression adopted in the proceedings, on a s 136 basis. (I note that no objection was raised, as such, on the basis of hearsay).

57. By the admission of evidence on a s 136 basis, the Court should be taken to have limited the use made of the evidence, on the basis that it may be prejudicial to a party, when given on an information and belief basis. AB pressed that the evidence should be received as to its truth.

58. In my view, evidence received on an information and belief basis will attract greater or lesser weight (including negligible weight) depending upon its nature and form. The three passages should be approached upon the basis that they should receive greater weight than other aspects of the second and fourth McTegg affidavits deposed upon the basis of information and belief. I refer, for example, to those parts of the evidence which I have found will attract little weight.

59. In contrast, Ms McTegg deposed in the fourth McTegg affidavit that, on 17 January 2017, that DD “again spoke to [AB] about suicide”. The limitations attending upon this evidence must result upon it attaching little, if any, weight attaching to it.

60. The reason for that approach is as follows:

1. The evidence is also admissible pursuant to s 172, noting the precursor that the evidence must set out the source, as it does, of the knowledge or information or the basis of the belief.

2. The three passages should be given some weight for three reasons:

1. The source of the material is clearly identified as AB and, the deponent is her solicitor. The information was given to Ms McTegg by way of instruction: see, Wily v Terra Cresta Business Solutions Pty Ltd [2006] NSWSC 949 at [11] (per Palmer J); New South Crime Commission v Vu [2009] NSWCA 349 at [46] (per Spiegelman CJ, with whom Allsop P and Hodgson JA agreed).

2. The material is in the form of direct speech, with words said to be spoken by DD. The incidents referred to and the words spoken are not directly corroborated by the report taken by Dr Nielssen but they are entirely consistent with the reporting of self-harm and drug abuse by DD as recorded therein.

3. Further, “they are relevant to an issue sought to be determined in the application itself”, namely the risk to DD’s safety: Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 65 at [8] (per Lepine J). Lepine J observed relevance to be a “fundamental” consideration with respect to evidence of this kind (at [8] and [11]).

SUBMISSIONS

Safety ground s 8(1)(c)

Submissions of AB

61. In the written and oral submissions of AB, no clear delineation was made between the two alternative constructions of s 8(1)(c). Substantial reliance was placed upon historical evidence, namely the affidavits of Ms McTegg, to detail DD’s history of mental issues and the report of Dr Nielssen.

62. It was the submission of AB that an order restraining the publication of material capable of identifying AB and her connection with the allegations made in the proceedings was necessary to protect the safety of DD.

61. The principal factors, in that respect, relied upon may be summarised as follows:

1. DD is “extremely vulnerable and unbalanced person” and there is a real risk that a publication by the ABC of the allegations of serious conduct made against AB (her mother) could “trigger” further self-harming or violent conduct, including a significant risk of suicide, attempted or successful;

2. The report of Dr Nielssen confirmed the existence of “such a risk and support the concerns expressed by AB… concerning her daughter’s wellbeing and safety”;

3. Dr Nielssen opined that DD is probably suffering from a personality disorder; and

4. DD’s “present state of fragility”, supported by reference to a suicide attempt over the Christmas period.

64. Reliance was placed upon the judgment of Harrison J in State of NSW v Kay [2017] NSWSC 274 (“Kay”). His Honour observed (at [25]):

[T]he question of necessity and whether or not an applicant has made out a case for an order restricting or limiting publication is a function of the strength of the evidence called in support …

65. With respect to the “extent” the defendant must demonstrate necessity, Harrison J turned to D1 v P1 at [49]-[51] (earlier extracted in the judgment at [23]).

66. The principal contention by the defendant in Kay was “that he feared for his safety”. It was submitted that such an order was necessary to protect him from physical harm. The defendant “relied upon the fears that he expressed in his evidence… his family and friends were also concerned about their safety, and an order was also said to be appropriate in those circumstances” (Kay at [15]). In the circumstances the suppression order was revoked. Harrison J observed (at [31]):

It would only be in cases where an applicant, such as the defendant in this case, were able to demonstrate by cogent evidence that people with knowledge of him were likely to resort to violence or that violence was imminent, not merely that he was fearful of such things, that an order suppressing his details could properly be made. This is not such a case.

67. Further, at [27], his Honour noted:

The position would arguably be different if the defendant were able to point to some such incident that supported the proposition that his safety would clearly be imperilled by the publication of his name or photograph.

68. By way of distinction from the present case, it was submitted that the material before the Court supported a finding of significant risk that DD may self-harm, with the real risk of another suicide attempt, if there was a publication. This was substantiated by medical evidence, namely, psychiatric evidence.

69. AB submitted that the evidence before the Court established “the inherent vulnerability of DD in the event of her exposure to any trauma”. Further, in this respect, Mr Dauid R Sibtain of counsel, who appeared with Ms Nicole Compton, for AB, relied upon a concession by the Intervenor that “the Court cannot discount the possibility of some risk to [DD’s] mental health following publication of the allegations contained in the Amended Statement of Claim”.

70. Counsel for AB conceded that “trauma unrelated to publication may produce the same outcome” and that a suppression order could not prevent “other triggers or adverse events [that] may also impact adversely on DD”. However, it was submitted that this did not render the suppression order sought unnecessary.

71. On the basis of the evidence before the Court, AB contended it is open for the Court to find that a publication “would be sufficiently traumatic as to pose a danger to DD in the future” and that the suppression orders sought are appropriate in the circumstances to “limit the risk to DD”.

Submissions of the Intervenor

Probability of Harm

72. Counsel for the Intervenor, Mr Matthew J Lewis submitted, the evidence relied upon by AB did not establish the requisite “necessity” that, on the balance of probabilities, DD would suffer harm if an order was not made. On the material before the Court, AB had not established the probability of harm to DD in the event of the broadcast of the allegations against AB.

73. In particular, the report of Dr Nielssen does not establish that, following the ABC publishing a story concerning the allegations against AB or her identifiers, that it is probable that DD would suffer harm in the manner alleged. Dr Nielssen was silent in that respect. The Intervenor attributed this omission to the fact the question concerning “significant risk” as opposed to “probability” was put to Dr Nielssen. Such omissions render the report unable to meet the high threshold under this test. Dr Nielssen was only asked to opine as to the significance of the risk.

74. The Intervenor drew attention to particular aspects of the report’s findings to support this contention. Dr Nielssen stated: “[DD] relies on her mother for support and her perceived loss of that support would be likely to have the adverse effect on her mental health”. It was contended this conclusion invites curiosity as to why DD felt that her mother is about to leave the country, noting her absence was identified as the likely cause of harm to DD. More importantly, there was no reference, in that respect, to the broadcast of the allegations against AB.

75. In summary, taking the evidence at its highest, and when read as a whole, it can only be understood to mean that “the orders sought are convenient, reasonable or sensible”. Mr Lewis submitted that a “bare belief that the orders were necessary is not enough to get the applicant over the hurdle of necessity”. They are not “necessary” for the purpose of s 8(1)(c).

76. The Intervenor also contended the affidavits of Ms McTegg did not support a finding of probability of harm. Particular reference was made to the second McTegg affidavit, which stated:

[AB] is extremely concerned for the health and wellbeing of her daughter, should her identity and the allegations to which this matter relate, be broadcast to the greater public.

77. The evidence of Ms McTegg was based on information and belief. The Intervenor contended the weight and persuasive value of evidence admitted on an information and belief basis “is very low”.

78. Mr Lewis contended, taken at its highest, the evidence of AB only goes to “concern” (as emphasised by AB) and not the “probability of harm”.

Imminence of Harm

79. Upon this alternative construction, the Intervenor submitted the evidence did not establish the necessary level of risk. That is, the evidence did not establish the broadcast of the allegations against AB would cause DD the “imminent harm” alleged.

80. With respect to the “likelihood” of risk to DD’s mental health, the Intervenor submitted that Dr Nielssen attributed DD’s “fragile and emotional state” to other events which were clearly unrelated to the broadcast of the allegations against AB. Further, when addressing the possible treatments to mitigate against any impact to DD’s mental health, Dr Nielssen recommended that DD should undergo long term supportive counselling and medication. Mr Lewis submitted that such recommended treatment is neither consistent nor synonymous with an imminence of harm.

81. As to the fourth McTegg affidavit, Mr Lewis’ primary contention was that there was no connection established between releasing the identity AB and any harm that had been suffered historically or presently by DD. Further, to the extent the fourth McTegg affidavit made reference to a treating psychiatrist, clinical psychologist and ambulance and police officers, the Court had received no evidence from those sources. Mr Lewis sought to rely upon the omissions within the material before the Court and submitted no compelling evidence had been led by AB to support such a finding upon this alternative construction.

82. Finally, it was submitted that there was a real doubt as to whether any suppression order would have utility in light of DD’s long history of “unstable mood” and “impulsive and self-defeating behaviour” and the subsequent diagnosis of “probable personality disorder”. It was contended by the Intervenor that to be an effective order, the Court should be satisfied that supressing the broadcast of the allegations against AB would prevent the risk of harm (whether expressed as a probability or possibility) to DD. As noted in the report of Dr Nielssen, the behaviour that DD exhibits is unconnected to the broadcast of the allegations against AB. Accordingly, in the submission of the Intervenor, the Court could not be confident that the relief sought would prevent any harm to DD.

CONSIDERATION

83. The operative condition for the making of a suppression or non-publication order under s 7 of the Act, where an applicant relies upon the ground in s 8(1)(c), is that order be necessary to protect the safety of any person, in this case DD.

Necessary: Probability of Harm

84. Upon the probability of harm construction of s 8(1)(c), in order for AB to succeed on the application for a suppression or non-publication order, she must prove, on the balance of probabilities, that, it is probable that DD would suffer harm in the absence of such an order whose terms were commensurate with the amelioration of that harm.

85. Under this construction, it is not sufficient to demonstrate there is a mere possibility of harm. It must be probable, in the sense of a real likelihood, that the harm would result if an order of a particular character was not made (see, for example, Boughey v The Queen (1986) 161 CLR 1; [1986] HCA 18 at 19).

86. As the issues have been framed in this matter, upon this construction, AB needs to demonstrate that, as a matter of probability, DD would suffer the harm contended, namely, mental harm or harm to wellbeing by means of self-harm occasioned through mutilation or attempted or completed suicide, if a suppression order was not granted.

87. I am satisfied that AB has established, on the evidence in these proceedings, that it is necessary that an order should be made under s 7 of the Act to protect the safety of DD pursuant to s 8(1)(c) of the Act upon the basis of the probability of harm as comprehended in the probability of harm construction and the aforementioned principles (at [18]-[30] and [84]-[86] of this judgment). My reasons for this finding appear below.

88. Central to this resolution of that issue is the evidence of Dr Nielssen, which, in this matter, is entirely contained within an unchallenged report. A proper understanding of the report, as in any document, requires that it be read in its entirety and not, as the Intervenor tended to do in its submissions, in a piecemeal fashion.

89. Dr Nielssen affirmed, in answer to question 1, there was a “significant risk” that DD would suffer harm in the form of harm to her mental health and wellbeing if there was a broadcast of the allegations against AB. In question 2, he answered why there was a significant risk that such “an impact” would occur and made further observations in that respect (as well as observations as to the nature and extent of harm) in answer to question 3, albeit in the consideration of treatment options.

90. The Intervenor contended that the opinion, so expressed, fell short of a conclusion that it was probable such harm would occur if there was a broadcast of the allegations against AB. The Intervenor’s submissions in support of that contention were essentially confined to a proposition that the use of the concept “significant risk” in the questions posed necessarily restricted any answers to a realm lying outside the probability of an occurrence. For the three conjoint reasons given below, I do not consider this contention may be accepted, if attention is focused upon the entirety of the report of Dr Nielssen, particularly the opinions he expressed under the headings “Psychiatric Disorders” and “Opinion” in his report.

91. First, Dr Nielssen was asked to prepare a “psychiatric report” and in that light, to consider the “psychological effect” of media coverage of the “mother’s situation” (being a reference to the broadcast of the allegations). This is precisely how he gave his opinion, first by making a diagnosis (and giving the reasons for the same) and then answering the questions posed. When Dr Nielssen provided his answer to question 2 as to why there is a significant risk he did so, in the first sentence, in terms of the factors which were closely connected to, if not pivotal to, his diagnosis of a personality disorder (having regard to DD’s psychiatric history).

92. When seen in that light, and, in particular, the psychiatrist’s reference to DD’s “history of markedly unstable mood” and “tendency to over react to any set back and act in an impulsive and self-defeating way”, it is clear Dr Nielssen was approaching the question of “significant risk” not in terms of a possibility but, having regard to his diagnosis of DD, the likelihood of harm or, put slightly differently, the propensity of DD to so act in a particular way given the diagnosis and recently reported history. Dr Nielssen was dealing with known features of the disorder which corresponded to DD’s psychiatric history, including recent reporting of suicidal thoughts. As I will later discuss, the context for the triggering of this response was the broadcast of the allegations (as outlined in the recent reporting of suicidal thoughts and the final sentence of the answer to question 3). This first basis for my conclusion is confirmed, as I will now discuss in my second consideration, by a closer analysis of the answer to question 3.

93. In the answer to question 3, Dr Nielssen opined that “personality disorder” was known to be associated with a greatly increased likelihood of “suicidal attempts and contemplated suicide, often carried out on an impulse after a perceived set back”. Whilst that opinion was given in answer to question concerning the treatment of DD, I do not consider Dr Nielssen’s opinion may be taken as quarantined to that subject matter or giving a mere theoretical disposition as to the characteristics of such a disorder. That is because Dr Nielssen used the expression “carried out on impulse are a perceived set back” in the final sentence of the answer to question 3 in a way which was entirely consistent, in my view, with his assessment of the likely behavioural response by DD to “set backs” (and her impulsive behaviour) referred to in the first sentence of the answer to question 2. That conclusion is not only representative of the proper approach to the understanding of the report where there is a consistency of the language used (and approach adopted) in the report. In his diagnosis of DD, Dr Nielssen stated that a feature of the personality disorder was “episodes of deliberate self harm”, thereby providing a link between the answers to questions 2 and 3 in the manner I have discussed.

94. When those interlocking components of the report are understood in that way, and account is taken of the connection between his diagnosis of personality disorder and the psychiatric and general history of DD (including the recently reported incidence of suicidal thoughts predicated upon the prospect of the broadcast of the allegations), in substance, Dr Nielssen gave an opinion that there is a real likelihood of an adverse impact upon DD’s mental health and wellbeing including self-harm by DD of a severe character, namely, suicide attempts and completed suicide. In doing so, Dr Nielssen specifically employed the language of probability.

95. It is true that Dr Nielssen’s diagnosis of personality disorder was described as “probable” because of the absence of a longitudinal assessment and demonstrated periods of statute. However, that qualification does not diminish the effect of Dr Nielssen’s evidence (as discussed in the previous paragraphs of this judgment) in the present context. The Intervenor raised no issue as to the acceptance of the diagnosis. Nor was there any contradictory or inconsistent evidence about the same. It must follow that, on the balance of probabilities, in determining the motion, DD’s psychiatric state and the risk and likelihood of harm deriving from the same would be as opined by Dr Nielssen, even though based upon a diagnosis which was subject to a final assessment.

96. Thirdly, and in any event, Dr Nielssen was asked to address, in question 1, an issue of cause and effect. When understood in that light the question posed to Dr Nielssen the question there posed, as to whether there was a “significant risk” the broadcast of the allegations would produce the identified harm, evoked the consideration of three and not two elements: not only consequence and significance (in the sense of notable or great) but also probability (see the discussion, albeit in a statutory construction context, in Woodcroft-Brown v Timbercorp Securities Ltd [2013] 96 ACSR 307; [2013] VSCA 284 at [130]-[131] (per Warren CJ, Buchanan JA and Macaulay AJA)).

97. The Intervenor contended that Dr Nielssen confined the risk of harm to the perception by DD of the loss of support of her mother including AB’s departure overseas. In substance, the Intervenor was contending that the opinion of risk of harm was not an opinion which was relevantly or causally connected to the broadcast of the allegations. I do not consider that contention can be sustained upon a fair reading of Dr Nielssen’s report.

98. Dr Nielssen did refer to DD’s perceived loss of support from her mother as being a factor likely to have an adverse effect of her mental health in his answer to question 2. It is reasonable to conclude, therefore, that it is one of the reasons why there was a significant risk that an adverse impact may occur. However, to elevate that conclusion to one that would eliminate, reduce or displace the broadcast of the allegations against AB as the primary or central cause of the significant risk of detriment to DD’s mental health and wellbeing (which is implicit in the Intervenor’s submission) would be to misunderstand Dr Nielssen’s report.

99. I have earlier discussed the relationship between the broadcast of the allegations against AB and harm to DD in Dr Nielssen’s report. As mentioned, the answer given to question 2 refers itself to DD being acutely aware of the potential significance of the airing of a program about the allegations against her mother. In any event, DD was aware that the very purpose of the interview with Dr Nielssen was to enable the preparation of a psychiatric report regarding the psychological effect of media coverage of her mother’s situation.

100. Questions 1, 2 and 3 represent sequential questions with the starting point being a question as to the relationship, by way of risk, between the broadcast of the allegations against AB and DD’s mental health and wellbeing. The reference to suicidal thoughts by DD in the psychiatric history (“stepping out in front of a bus”) is directly related to DD’s hearing about her “mother’s situation” being itself connected to the opening paragraphs of the report which refer to, as I have noted, media coverage of her mother’s situation.

101. One further consideration is the report given by DD to Dr Nielssen. There are contrasting responses by DD as between discussions of the loss of AB’s support and attention being drawn to the broadcast of the allegations against AB. In the first case, DD exhibits emotions in the nature of frustration and disbelief, whereas, in the second, Dr Nielssen reported extreme reactions of the kind such as suicidal thoughts.

102. Ultimately the question of the probability of harm must be determined by the Court. In this respect, the occurrences described in the three passages of the fourth McTegg affidavit also contribute to that assessment. I do not consider that this assessment is diminished by the passage of time from the filing of the fourth affidavit and the date of this judgment as submitted by the Intervenor. In essence, the three passages represent one significant occurrence which is consistent with a reported, long, history of episodes of self-harm, including those reported to Dr Nielsson, namely, in his diagnosis of two psychiatric disorders. There was no evidence called by the Intervenor as to the likelihood of the abatement of such conditions nor any cross-examination sought in that respect of Dr Nielsson. Finally, the answer to question 3 given by Dr Nielssen was such that it was highly unlikely there would be any reduction in the psychiatric condition over a relatively short period, let alone in the absence of treatment.

84. As to the nature of the harm, I consider the answer to question 1, when read with the answers to questions 2 and 3, identify the likely harm to be that of mental harm and harm to the wellbeing of DD. In the latter case, Dr Nielssen’s conclusion was that of physical harm in the form of self-harm based upon the diagnosed disorder which ranged from reported self-mutilation to suicidal thoughts potentially actioned through attempted to completed suicide. This also accords with recent occurrences involving DD as outlined in the three passages from the fourth McTegg affidavit above (at [52]-[54] of this judgment). I do not consider the treatment options of counselling represents the existence of a lower level of risk essentially for the reasons developed below.

85. As earlier mentioned, on a probability of harm construction, consideration must be given to alternative ways in which the probability of harm could be prevented. In this respect, the Intervenor relied upon the answer to question 3 in Dr Nielssen’s report to contend that a long term supportive counselling relationship, perhaps with psychotropic medication, would meet or provide such an alternative measure. I do not agree.

86. The answer to question 3 contains two significant qualifications. First, a qualification is introduced by the word “however” in question 3. Dr Nielssen stated “there is very little research on which to base an opinion regarding the prognosis of an individual patient who has participated in counselling for this condition”. It is a little unclear whether he is referring, in that respect, to a person with markedly unstable moods or a personality disorder or both but in any case it is a significant qualification.

87. Secondly, Dr Nielssen stated that he is unable to predict whether DD would adhere or respond to such treatment given her history of involvement with counselling and psychological treatments. Consistent with this concern, Ms McTegg recorded that DD did not want to continue her dialectical behavioural therapy.

88. The Intervenor contended that the orders lacked utility because DD’s psychiatric condition meant that she is capable of adverse reaction from any set back, irrespective of the broadcast of allegations made against AB, which may trigger an impulsive response and harm.

89. It is true that, as mentioned above, DD has a history of unstable mood and a propensity to overreact to any setback. By its nature, then, reactions have not been historically related to any particular occurrence.

90. This is not, however, a case where the allegations have already received a public airing and thereby the proposed orders are robbed of their utility. In the result, the broadcast represents a discrete fresh event to which Dr Nielssen’s opinions as to the likelihood of harm are directed. The orders are directed to the prevention of the very risk Dr Nielssen opined would emanate from the broadcast.

91. Further, I consider AB’s submissions in reply are apt in this respect. Those submissions were as follows:

In circumstance where any trauma may produce a catastrophic outcome, it is not an answer to say that because a trauma unrelated to publication may produce the same outcome, the order is not necessary. Whilst other unknown traumatic events may be encountered by DD in the future, it is known that publication would be sufficiently traumatic as to pose a danger to DD’s wellbeing. As such the making of an order is an appropriate and necessary step to take in order to limit the risk of DD.

The corollary or alternate submission made by the Intervenor is that the order lacks utility, in substance, because it is likely that DD may harm herself even if the order is not made, given her present state of vulnerability.

That submission presumes (without proof) the occurrence of future traumatic events (presently unknown) and concludes that because it is likely that some event (presently unknown) will occur, such as to endanger the welfare of DD, there is no utility in making an order in respect of a known future traumatic event – namely, the publication of the allegations against AB. The presumption lacks an evidentiary base. This Court would not conclude that the order lacks utility on a hypothesis that DD may be traumatised by matters outside the Court. The evidence establishes that self-harm is likely if the Court does not make an order. If the Court makes an order, it is possible that no other event will occur such as to threaten the safety of DD. Those differential outcomes show the utility of the making of the order.

111. It follows that making the orders under s 7 will not merely serve the purposes of convenience, reasonableness and being sensible, but rather, are “necessary” to protect the safety of DD.

Necessary: Imminence of Harm

112. It is not strictly necessary to make any ruling under the imminence of harm test in the light of the aforementioned discussion of a probability of harm. It was accepted by Mr Lewis for the Intervenor, correctly in my view, that the “second limb”, the imminence of harm construction, was only necessary to consider if the “first [was not] made out”, namely, the probability of harm. However, I will briefly state my reasons for a finding that AB has made out the ground under s 8(1)(c) under that construction, albeit compendiously, having regard to those conclusions overlapping with the findings made with respect to the probability of harm construction. It should not be taken from that approach that I consider there is a deficit in AB’s case under this heading. In substance, I consider AB’s case in this respect to be compelling.

113. Having regard to my findings that the prospective harm is severe, it may be more readily concluded, under this test, that an order is necessary, even if the risk were a possibility (contrary to my findings above) as opposed to a probability: D1 v P1 at [51].

114. As to the nature and degree of the likelihood of harm, I adopt, without repetition, the aforementioned conclusions regarding the probability of harm at [91]-[96] and [99]-[103]. It will suffice to mention briefly the factors contributing to the conclusion there was an imminence of harm.

115. The following passages from Dr Nielssen’s report reveal the imminence of harm to DD because they demonstrate DD’s psychiatric state, as diagnosed or reported by her, is so vulnerable and fragile that the broadcast will likely be to result in “impulsive” responses or an over reaction in the form of mental harm or self-harm:

1. “[DD] has a history of markedly unstable mood and a well documented tendency to over-react to any set back and to act in an impulsive and self-defeating way.”

2. “She is currently in a fragile emotional state after the end of an abusive relationship”.

3. DD said her mood was very unstable and “like being constantly on a roller-coaster… in five minutes I could be totally overwhelmed by everything… I can be feeling fine and then the next minute I get a feeling in the pit of my stomach… I get depressed easily… overall there are a lot of things I am unhappy about”.

4. DD said (as quoted by Dr Nielssen): “last Thursday [after hearing about the mother’s situation] I was thinking about stepping out in front of a bus… I have thought about it quite regularly… I have thought plans as to where and when… with the roller-coaster I am not thinking about it at the moment… but with everything that’s going on now it could change suddenly”.

5. Dr Nielssen diagnosed DD with “probable personality disorder” and “substance use disorder”, each of which is productive of self-harm. The diagnosis of the former disorder was based upon, inter alia, a history of impulsive actions by DD and the tendency to overreact.

116. The notion of “impulsive” reactions or “an over reaction” are consistent with the notion of imminence as they connote an immediacy of response without reflection or a well-considered basis.

117. I also adopt, in this respect, my observations about the immediacy of risk at [98]-[101] above.

118. Furthermore, the occurrences described in the three passages from the fourth McTegg affidavit provides evidence of DD’s recent attempted self-harm on 21 December 2016 (see, at [102] above).

119. Finally, the same conclusion may be reached as to absence of available treatments likely to succeed for DD as reached with respect to the probability of harm. The same conclusions should lead to a rejection of the Intervenor’s submission that the proposed treatment was neither consistent nor synonymous with the imminence of harm.

CONCLUSION

120. It is unnecessary to express a view as to which of the approaches to the construction of s 8(1)(c) (and, in particular, the notion or concept of necessity) in D1 v P1 should be preferred in the present matter. That is because, on the evidence in these proceedings, AB has established that orders should be made under s 7 of the Act upon either construction. In my view, AB has established, on the balance of probabilities, that the making of a suppression or non-publication order or orders is necessary to protect the safety of DD in the sense that, absent the order or orders being made, it would be probable that DD could suffer harm or under the imminence of harm construction that the order or orders are necessary to protect DD’s safety simpliciter.

121. This conclusion has as its foundation the principles earlier referred to in this judgement and gives due weight to the principle of open justice and the requirements of s 6 of the Act.

122. In that light, and as earlier mentioned, it is strictly unnecessary to determine the application by AB for injunctive relief or whether a publication by the Intervenor of the extraneous material in the amended statement of claim would constitute a breach of an implied undertaking.

DIRECTIONS

123. 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. This approach was, in part, adopted because of issues raised by the Intervenor such as duration of the proposed orders or whether any reference was permissible to the name of the school in any broadcast. Further, counsel for AB indicated an intention to amend the orders sought to ensure coherence with the Act. I propose to adopt that course. Such an approach will enable the parties to address the appropriate final form of orders in the light of this judgment and the requirements of the Act.

124. Bearing in mind those considerations, I shall make directions for AB to bring in short minutes of order identifying any variation to the orders sought in the motion regarding the form of the orders (including their duration) in conformity with this judgment together with submissions in support of the same. The Intervenor shall be given the opportunity to reply. I propose to deal with the question of orders on the papers unless either party seeks a short oral hearing in relation to the same.

125. 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.

126. The interim suppression order shall continue until final orders are made by the Court.

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Decision last updated: 11 July 2017