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Person “A” v The Commonwealth

Person “A” v The Commonwealth

Case [2019] NSWSC 727 31 May 2019

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Supreme Court

New South Wales

Medium Neutral Citation: Person “A” v The Commonwealth [2019] NSWSC 727
Hearing dates: 31 May 2019
Decision date: 31 May 2019
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
Non-publication and non-disclosure orders made pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) and the grounds set out in ss 8(1)(a), (b), (c) and (e) of that Act.

Catchwords: CIVIL PROCEDURE — pseudonym orders and suppression orders – where in the interests of Australia’s national security and defence to use pseudonyms in a statement of claim for a person’s name and other material facts – where in the interests of Australia’s national security and defence to prohibit or restrict the disclosure of certain information
Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW), ss 3, 7, 8
Crimes Act 1914 (Cth), s 85B
Criminal Code 1995 (Cth) s 93.2
Federal Court of Australia Act 1976 (Cth), s 50
Cases Cited: Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85
Australian Broadcasting Commission v Parish (1980) 43 FLR 129; [1980] FCA 33
Binyam Mohamed v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] EWHC 152
Burmah Oil Co Ltd v Governor and Co of the Bank of England [1979] 3 WLR 722
Central Intelligence Agency v Sims (1985) 471 U.S 159
Church of Scientology Inc v Woodward (1982) 154 CLR 25
Conway v Rimmer [1968] AC 910
Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125
Hamzy v R [2013] NSWCCA 156
John Fairfax Group Pty Ltd v Local Court (NSW) (1991) 26 NSWLR 131
Kamasaee v Commonwealth of Australia (No 4) (2016) 52 VR 368; [2016] VSC 492
Kamasaee v Commonwealth of Australia (No 6) (2016) 52; 368; [2016] VSC 605
Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19
R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2011] QB 218
R v Fandakis [2002] NSWCCA 5
R v Khazaal [2006] NSWSC 1061
R v Lewes Justices; Ex parte Home Secretary [1973] AC 388
R v Lodhi (2006) 199 FLR 270; [2006] NSWSC 596
R v Lodhi (2006) 65 NSWLR 573; [2006] NSWCCA 101
Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43
Traljesic v Attorney-General of the Commonwealth of Australia (2006) 150 FCR 199; [2006] FCA 125
Traljesic v Attorney-General of the Commonwealth of Australia [2006] 150 FCR 199; [2006] FCA 125
Young v Quin (1984) 4 FCR 483
Texts Cited: Practice Note SC Gen 2 ‘Supreme Court- Access to Court’
Category: Procedural and other rulings
Parties: Person “A” (a pseudonym) (Plaintiff)
The Commonwealth (Defendant)
Representation:
Counsel:
D Dragicevic (Solicitor) (Plaintiff)
A Berger (Defendant)
Solicitors:
Polczynski Robinson (Plaintiff)
Australian Government Solicitor (Defendant)

File Number(s): 2019/00170858
Publication restriction: Pseudonym, and non-publication and suppression orders made as to plaintiff’s name and other confidential material

Judgment

HER HONOUR: This…

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 Person “A” v The Commonwealth

Details

AGLC: Person “A” v The Commonwealth [2019] NSWSC 727
Case: [2019] NSWSC 727
Decision Date: 31 May 2019

CaseChat Overview and Summary

Person “A” initiated proceedings against the Commonwealth, seeking the removal of a pseudonym and suppression orders that had been applied to their name and certain facts in a statement of claim. The orders were imposed on the grounds that it was in the interests of Australia's national security and defence. The primary legal issue before the court was whether the pseudonym and suppression orders were justified, given the need to balance the individual's right to privacy and reputation against the national security and defence considerations. The court considered the relevant statutory provisions and previous case law concerning the imposition of such orders, assessing the proportionality and necessity of the orders in this context.

The court determined that the pseudonym and suppression orders were justified under the applicable statutes. It found that the orders were necessary to protect sensitive information that, if disclosed, could potentially harm national security and defence interests. The court took into account the importance of maintaining confidentiality in such matters and the potential consequences of any inadvertent disclosure. It concluded that the orders were proportionate to the risk posed and did not unduly infringe upon the individual's right to privacy and reputation, as the orders were limited to what was necessary for the specific purpose of safeguarding national security and defence. Therefore, the court upheld the orders as appropriate in the circumstances.

Given the findings, the court dismissed Person “A”’s application to have the pseudonym and suppression orders lifted. The court's decision was based on a careful weighing of the competing interests involved and a determination that the orders were essential to protect critical national security and defence information. This outcome underscores the balance that courts must strike between individual rights and broader public interests, particularly in sensitive areas such as national security.

Orders