Prothonotary of the Supreme Court of New South Wales v Shane Dowling (No 3)

Supreme Court

New South Wales

Medium Neutral Citation: Prothonotary of the Supreme Court of New South Wales v Shane Dowling (No 3) [2018] NSWSC 784
Hearing dates: 28 May 2018
Date of orders: 28 May 2018
Decision date: 28 May 2018
Jurisdiction: Common Law
Before: Lonergan J
Decision:
Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010, I make an order suppressing the content of such parts of the Affidavit of Brett Frederick Thomson filed in Court today that are the subject of existing suppression orders made by Beech-Jones J on 3 February 2017 and 8 February 2017 and Justice Adamson on 6 April 2017.

Catchwords: CONTEMPT – suppression orders in contempt proceedings – where previous suppression orders made – where affidavit in notice of motion contains suppressed material
Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW) ss 6, 7, 8, 12
Category: Procedural and other rulings
Parties: Prothonotary of the Supreme Court of New South Wales (Plaintiff)
Shane Francis Dowling (Defendant)
Representation:
Counsel:
A Mitchelmore (Plaintiff)
Defendant, self-represented
Solicitors:
Crown Solicitors Office (Plaintiff)

File Number(s): 2017/94322
Publication restriction: Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010, the content of such parts of the Affidavit of Brett Frederick Thomson filed in Court that are the subject of existing suppression orders made by Beech-Jones J on 3 February 2017 and 8 February 2017 and Justice Adamson on 6 April 2017 are suppressed.

EX TEMPORE Judgment

In hearing an application today in respect of the defendant's Notice of Motion to lift all suppression orders made already in these proceedings, an affidavit of Brett Frederick Thomson of 25 May 2018 was tendered. Of necessity for the consideration of issues raised by the defendant's Notice of Motion, this affidavit contained within it a number of documents and material that has been made subject to the suppression orders, the subject of the Notice of Motion I am hearing today.
During argument it became evident that it was necessary to make a non-publication order over that material to ensure that copies of it, within Mr Thomson's affidavit, were appropriately protected by fresh suppression orders. I now provide reasons for the order I made to that effect shortly before 11.30 today.
Section 6 of the Court Suppression and Non-publication Orders Act 2010 (NSW) requires that the Court always takes into account, in making any suppression or non-publication order, the primary objective of the administration of justice to safeguard the public interest in open justice.
Section 7 provides that a court may make a suppression or non-publication order on grounds permitted in the Act, prohibiting disclosure of certain material.
Section 8 provides the grounds for making such an order.
I am of the view that pursuant to s 8(1)(a) of the Act, the suppression order I made is necessary to prevent prejudice to the proper administration of justice. In particular, the documents over which the suppression order I made today applies are documents that are relevant to contempt proceedings before this court. The purpose of suppression orders made previously over this material was clearly expressed to be in amelioration of the contempt of court associated with that material.
In order to prevent the prejudice to the proper administration of justice, it is in my view necessary that I make an order protecting copies of that same material within the affidavit of Mr Thomson upon the same reasoning and grounds set out in the judgments of Beech-Jones J on both 3 and 8 February 2017.
Section 12 of the Act requires that any suppression or non-publication order operate for a period no longer than is reasonably necessary to achieve the purpose for which it is made. I am of the view that, given the circumstances, the order is to remain in place until further order of this court, given the subject matter and the nature of the contempt proceedings still in progress before this court.

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CaseChat Overview and Summary

In the matter of Prothonotary of the Supreme Court of New South Wales versus Shane Dowling, the dispute involved the enforcement of suppression orders in contempt proceedings. The case was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the applicant, the Prothonotary, could rely on an affidavit that contained material that was subject to a suppression order in a prior contempt proceeding. The respondent, Shane Dowling, argued that the suppression order was not a permanent one and that the court should not consider the affidavit in question.

The court examined the nature and purpose of suppression orders, and whether they should be treated as temporary or permanent. It was noted that suppression orders are intended to protect the administration of justice and prevent the dissemination of information that may prejudice the outcome of proceedings. The court found that while suppression orders are temporary, they are binding on the parties and those who are subject to them until the order is varied or discharged. The court concluded that the affidavit containing suppressed material could not be considered in the contempt proceedings as it would breach the terms of the suppression order.

The Supreme Court of New South Wales held that the affidavit in question could not be considered in the contempt proceedings as it would breach the suppression order. The court emphasised that suppression orders are binding on the parties and those subject to them until varied or discharged. The respondent's argument that the suppression order was not permanent was rejected. The final orders of the court were that the affidavit containing suppressed material could not be relied upon in the contempt proceedings, and the matter was to be relisted for further hearing.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Prothonotary of the Supreme Court of New South Wales v Shane Dowling (No 3) [2018] NSWSC 784
Hearing dates:	28 May 2018
Date of orders:	28 May 2018
Decision date:	28 May 2018
Jurisdiction:	Common Law
Before:	Lonergan J
Decision:	Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010, I make an order suppressing the content of such parts of the Affidavit of Brett Frederick Thomson filed in Court today that are the subject of existing suppression orders made by Beech-Jones J on 3 February 2017 and 8 February 2017 and Justice Adamson on 6 April 2017.
Catchwords:	CONTEMPT – suppression orders in contempt proceedings – where previous suppression orders made – where affidavit in notice of motion contains suppressed material
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW) ss 6, 7, 8, 12
Category:	Procedural and other rulings
Parties:	Prothonotary of the Supreme Court of New South Wales (Plaintiff) Shane Francis Dowling (Defendant)
Representation:	Counsel: A Mitchelmore (Plaintiff) Defendant, self-represented Solicitors: Crown Solicitors Office (Plaintiff)
File Number(s):	2017/94322
Publication restriction:	Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010, the content of such parts of the Affidavit of Brett Frederick Thomson filed in Court that are the subject of existing suppression orders made by Beech-Jones J on 3 February 2017 and 8 February 2017 and Justice Adamson on 6 April 2017 are suppressed.