Plaintiff A v Bird; Plaintiff C v Bird

[2015] NSWSC 570

Supreme Court

New South Wales

Medium Neutral Citation:	Plaintiff A v Bird ; Plaintiff C v Bird [2015] NSWSC 570
Hearing dates:	21 April 2015
Date of orders:	21 April 2015
Decision date:	21 April 2015
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Application to transfer the proceedings to this Court from the District Court allowed. Application seeking prohibition of identity of certain persons in the proceedings allowed.
Catchwords:	PROCEDURE – civil – jurisdiction – transfer of proceedings from District Court to Supreme Court – where real chance of award of damages exceeding jurisdictional limit of District Court. PROCEDURE – civil – interlocutory issues – suppression orders – where order sought suppressing identify of plaintiffs and another child in the proceedings
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW), s 15A Civil Procedure Act 2005 (NSW), s 140
Cases Cited:	Cubrilo v Veljovic [2015] NSWSC 367 D1 v P1 [2012] NSWCA 314
Category:	Procedural and other rulings
Parties:	2015/102175 Plaintiff A (First Plaintiff) Plaintiff B (Second Plaintiff) Rodney Raymond Bird (First Defendant)
Representation:	Counsel: E Romaniuk SC, M Kuma (Plaintiffs) D Toomey (First Defendant) N Smith (Second and Third Defendants) Solicitors: Shine Lawyers (Plaintiffs)
File Number(s):	2015/1021752015/102195
Publication restriction:	The names of all three plaintiffs in both proceedings and the child in the second proceedings are supressed.

Judgment – Ex tempore

1. HER HONOUR: Before the Court are two applications to have proceedings in the District Court transferred to this Court. In each case, orders are also sought prohibiting the disclosure of the identity of certain persons involved in the proceedings. Both proceedings arise out of alleged sexual assaults at a child care centre operated by the second and third defendants in each proceeding.

2. The first defendant in each proceeding is the alleged offender. In one set of proceedings, the first plaintiff is a child allegedly sexually assaulted by the first defendant and the second plaintiff is the mother of that child. The claim of the child alleges intentional assault by the first defendant and negligence on the part of the second and third defendants in the conduct of the child care centre. The mother claims damages for psychiatric or psychological injury caused by the same alleged events.

3. In the other proceedings there is a single plaintiff, being the mother of a second child alleged to have been assaulted by the first defendant. That mother also claims damages for psychological or psychiatric injury caused by her becoming aware of the alleged assaults on her child. The child concerned in that case is not a party to the proceedings.

4. I turn first to deal with the applications to transfer the proceedings to this Court. The Court has power to order the transfer of proceedings to it under s 140 of the Civil Procedure Act 2005 (NSW), which relevantly provides:

(1) The Supreme Court may, of its own motion or on application by a party to proceedings before the District Court or the Local Court, order that the proceedings, including any cross-claim in the proceedings, be transferred to the Supreme Court.

…

(3) Proceedings in the District Court on a claim for damages arising from personal injury or death are not to be transferred to the Supreme Court under this section unless the Supreme Court is satisfied:

…

(b) in any other case:

(i) that the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court, or

(ii) that there is other sufficient reason for hearing the proceedings in the Supreme Court.

5. The primary basis for the present applications is the prospect that the amount to be awarded to the three plaintiffs will exceed the jurisdictional limit of the District Court. Section 44(1) of the District Court Act 1973 (NSW) relevantly provides that the District Court has jurisdiction to hear and dispose of an action which, if brought in the Supreme Court, would be assigned to the Common Law Division of that Court and in which the amount claimed does not exceed the Court’s jurisdictional limit. The present jurisdictional limit is $750,000.

6. The proper approach to determining the likelihood that the amount to be awarded to the plaintiff, if successful, will exceed that jurisdictional limit was recently considered by Campbell J in Cubrilo v Veljovic [2015] NSWSC 367. As explained by his Honour at [9], the task for the Court is to make, in a summary way, an assessment as to whether there is a real chance of an award exceeding the limit.

7. I was informed by senior counsel for the plaintiffs that it is an open question whether, in proceedings involving two plaintiffs, that approach requires the Court to consider the combined amount likely to be awarded to both plaintiffs or rather to assess the likely award to each plaintiff individually. It is not necessary to determine that issue in the present applications; the evidence establishes to my satisfaction a real chance, in the proceedings involving two plaintiffs, of an award to the mother exceeding $750,000.

8. In the other proceedings, in which there is a single plaintiff, the evidence establishes to my satisfaction a real likelihood of an award well in excess of that amount. Plainly, it would be desirable for both proceedings to be heard together. That is a sufficient reason, in my view, for transferring the claims of all three plaintiffs to this Court.

9. As to the application for orders prohibiting the disclosure of the identity of certain persons, the application relates to each of the three plaintiffs and the child of the plaintiff in the second proceedings who, although not herself a plaintiff, is concerned in the sexual assaults alleged.

10. The application seeks to invoke s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) and, alternatively, s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). The latter section is expressed as a prohibition which, when it applies, exists regardless of any order of the Court. As submitted by Mr Toomey, who appears for the first defendant in each case, it is not a source of power to make a suppression or non-publication order. However, the content of the prohibition plainly informs the proper exercise of any discrete power to make such an order.

11. Express power to make orders of the kind now sought may be found in the Court Suppression and Non-Publication Orders Act. As reflected in s 6 of that Act, a primary objective of the administration of justice is to safeguard the public interest in open justice.

12. My attention was drawn during argument to the decision of the Court of Appeal in D1 v P1 [2012] NSWCA 314. The discernment of the principles established by that decision is complicated by the fact that the judgment is published with substantial sections suppressed. As I read the judgment, it was a case in which suppression orders had been sought in circumstances tolerably similar to the present application, save for the fact the person seeking the orders and seeking to have his or her identity protected by the orders was the perpetrator rather than the alleged victims of assaults. Further, the basis for the application was s 8(1)(c) of the Act, which empowers the Court to make an order where it is necessary to "protect the safety of any person." Whilst it is not entirely clear, having regard to the suppressed sections of the judgment, I apprehend that person was a person who had a connection with the defendants as to whom the evidence suggested he or she was at risk of self-harm if his or her identity were not suppressed. A different position exists in the present case, where the orders are sought to protect the identity of the alleged complainants rather than the alleged perpetrator.

13. In any event, in a discussion of the relevant authorities, the Court in D1 v P1 noted that courts will be solicitous to the effect litigation has on children. The judgment does not make clear whether the person referred to as "X" was a child, but that appears to be the context in which reference to those decisions was made. The Court also referred to the remarks of Mahoney JA in John Fairfax Group Pty Ltd (Receivers & Managers Appointed) v Local Court (NSW) (1991) 26 NSWLR 131 at 163 to 164:

"First, it is important to remember - because, in what is said about the open conduct of the courts, it appears sometimes to be forgotten - that the open conduct of the courts can cause great pain and loss to those touched by what is done and what is publicised. It is, in my opinion, the function of the law - and the obligation of the courts in administering it - to avoid such pain and loss to the extent that it is possible to do so. To the extent that this detriment to the individual is not avoided, the law is deficient and the courts have been less than fully effective.

Secondly, the assumption which, I think, sometimes emerges from what is urged for the open conduct of courts is that that principle is to be upheld and the right to publish is to be unrestricted notwithstanding that the individual suffers for it. If this assumption underlies the submissions made in the present proceeding, it is an assumption which I would not accept. As I have said, the principle that the courts are to be open and that the media may publish what is done in them is not an end in itself. The principle is adopted because it is judged to be the means by which other and more fundamental goods will be achieved. The power which the community gives to any person, whether he be in Parliament, an official in government, or a judge is to be exercised properly and accountably. And, it is believed, that will be achieved if the power is exercised, as in the present case, in open court and subject to full publicity."

14. It was observed at the conclusion of that extract in D1 v P1 that those remarks must now be read subject to the provisions of the Court Suppression and Non-Publication Orders Act. I would, however, apprehend that the Court of Appeal did not intend in D1 v P1 to say anything contrary to the proposition that open justice is not to be seen as an end in itself, but rather as a boon to the administration of justice.

15. In my view it is appropriate, where the interests of a child are at stake in the manner in which litigation is conducted, to be solicitous to the effect such litigation may have on the child. It is in that context that the provisions of s 15A of the Children (Criminal Proceedings) Act should be considered. That Act evinces a plain intention that the identity of a child who is a victim of a sexual assault should be protected and that the publication of the identity of such a child should be prohibited. Subsection 5 recognises the obvious proposition that the identity of the mother of such a child ought also be prohibited if its publication may lead to the identification of the child.

16. It is appropriate, in my view, to read the provisions of the Court Suppression and Non-Publication Orders Act in a manner that gives coherence to those provisions of the Children (Criminal Proceedings) Act. Accordingly, I am persuaded it is appropriate to make orders prohibiting, or at least restricting, disclosure of the identity of the three plaintiffs and the child concerned in the second proceedings.

17. The orders sought by the plaintiffs, in my view, may in some ways be unworkable. In particular, the way in which the orders are currently framed invokes ss 8(1)(a), (d) and (e) of the Act. I do not think subs (d) is properly invoked, since the witnesses in these proceedings will not be witnesses “in criminal proceedings”, which is the circumstance in which that subsection operates.

18. In my view, it is appropriate to make the order invoking sub-ss (a) and (e) only, for the reasons I have explained. Further, the orders sought contemplate that, effectively, all documents on the court file should be placed in a sealed envelope, to be opened only on the order of a judge of this Court.

19. The Act defines a “suppression order” as one which either prohibits or restricts the publication of identifying information. In my view, it would be an adequate protection of the identity of the persons to whom I have referred, were the disclosure of their identity to be restricted in so far as it appears on the court file rather than being completely prohibited with the measures contemplated in order (h) of the amended summons.

20. For those reasons, I am inclined to make orders pursuant to s 7 of the Court Suppression and Non-Publication Orders Act, but it will be necessary for the plaintiffs to bring in a form of order that reflects these reasons.

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Decision last updated: 15 May 2015