Richards (a pseudonym) v Jones (a pseudonym) (No 2)
[2025] NSWSC 27
•5 February 2025
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New South Wales |
Case Name: | Richards (a pseudonym) v Jones (a pseudonym) (No 2) |
Medium Neutral Citation: | [2025] NSWSC 27 |
Hearing Date(s): | 5 February 2025 |
Date of Orders: | 5 February 2025 |
Decision Date: | 5 February 2025 |
Jurisdiction: | Common Law |
Before: | Dhanji J |
Decision: | (1) Pursuant to ss 7 and 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) the publication or other disclosure of the following material is prohibited for a period of 20 years: |
Catchwords: | CIVIL PROCEDURE – application for suppression orders – where interim suppression order had been made – ex parte proceedings – principle of open justice primary objective – prejudice to the proper administration of justice – meaning of “necessary” – orders made |
Legislation Cited: | Court Suppression and Non-publication Orders Act 2010 (NSW) |
Cases Cited: | AB (a pseudonym) v CD (a pseudonym) (2019) 93 ALJR 321; [2019] HCA 6 |
Category: | Procedural rulings |
Parties: | Richards (a pseudonym) (First Plaintiff) |
Representation: | Counsel: |
File Number(s): | 2025/11184 |
Publication Restriction: | Pursuant to s 8 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), the names of the parties are suppressed and replaced with the pseudonyms adopted in this judgment. |
EX TEMPORE JUDGMENT (REVISED)
HIS HONOUR: This matter came before me on 9 January 2025 in my capacity as duty judge. On that date, the plaintiffs were given leave to file their summons in Court. That summons sought, amongst other relief, urgent interlocutory relief restraining the defendant from causing to be published certain representations.
The plaintiffs also sought a suppression order under the Court Suppression and Non-publication Orders Act2010 (NSW) (“the Act”).
The interlocutory relief sought was granted and an interim suppression order was made, pursuant to s 10(1) of the Act: see Richards (a pseudonym) v Jones(a pseudonym) [2025] NSWSC 5. That order prohibited the publication or other disclosure of:
(a)the identity, contact details or address of any of the parties;
(b)any information tending to reveal the identity of any party or witness, or any person associated with a party or witness;
(c)the affidavit of Patrick George sworn 9 January 2025 and its exhibits; and
(d)any other document, evidence or information raised or relied on in the proceedings including the submissions.
As a result of the order having been made on an interim basis, the Court was not required to grapple with the merits of the application. Section 10(2) of the Act however requires that “if an order is made as an interim order, the Court must determine the application as a matter of urgency”.
As a result of the interim order being made in the holiday period, the matter has been delayed, to a small degree, but has come back before me today in compliance with that requirement of urgency.
The plaintiffs in support of their application rely on the affidavit of Patrick George, and associated exhibit, of 9 January 2025 and the affidavit of Jeremy Marel of 15 January 2025.
The matter initially proceeded before me on an ex parte basis, the defendant having not at that time been informed of the proceedings. The defendant has since been served with the summons and contact has been made with him. He did not appear before me today. That may be due to medical difficulties he has been experiencing. He was recently discharged from hospital. However, the recency of that discharge may be such that he has not had sufficient time to instruct representatives and engage with the proceedings.
Given the requirement for urgency, it is my view that, despite the non-appearance of the defendant, the matter should be determined today. In the event that an order is made, as requested by the plaintiffs, it will of course be open to the defendant to bring an application to vary or revoke that order. In those circumstances, it seems to me that the most efficient course is to determine the plaintiffs’ application on its terms.
The Court has a power to make suppression or non-publication orders, pursuant to s 7 of the Act. Such orders may prohibit or restrict the publication or other disclosure of the matters set out in s 7(a) and (b).
The terms “non-publication order” and “suppression order” are defined in s 3 of the Act.
A 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)”.
Publish is defined to mean:
“disseminate or provide access to the public or a section of the public by any means, including by—
(a) publication in a book, newspaper, magazine or other written publication, or
(b) broadcast by radio or television, or
(c) public exhibition, or
(d) broadcast or publication by means of the Internet.”
Suppression order is defined to mean “an order that prohibits or restricts the disclosure of information (by publication or otherwise)”.
The power to make such an order is predicated on satisfaction of one of the grounds set out in s 8 of the Act. The particular ground relied upon in the present proceedings is that in s 8(1)(a). That is, “the order is necessary to prevent prejudice to the proper administration of justice”.
While the Court has the power referred to in s 7, predicated on the satisfaction of a ground in s 8, a determination of whether the ground is satisfied must, pursuant to s 6 of the Act, be made taking into account “that a primary objective of the administration of justice is to safeguard the public interest in open justice”.
The plaintiffs submit that it is necessary to make a suppression order to prevent prejudice to the proper administration of justice. In making that submission, the plaintiffs acknowledge that the word “necessary” is a strong one, referring to Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [31] per Bathurst CJ and McColl JA. They note however that “necessary” should not be given a narrow construction: see Fairfax Digital Australia and New Zealand Pty Limited v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 at [8] per Bathurst CJ and at [46] as per Basten JA.
Whether an order is necessary will depend upon the particular facts of the individual case in the context of the particular interest sought to be protected and the governing principles, including the principle of open justice.
As a preliminary observation, I note that whilst a suppression order is sought that does not mean that the plaintiffs seek to do away with the principle of open justice altogether. The proceedings, both when the matter was previously before me and those today, have been held in open court. Further, the judgment granting interim relief, subject to the use of pseudonyms and some redactions, will be published. Those pseudonyms and the redactions will not prevent an interested person understanding the basis on which the orders were made.
The judgment in relation to these orders, that is the suppression order, is in a similar category. On the plaintiffs’ case, there will, by those means, have been a significant measure of open justice even if a suppression order is granted.
The meaning of “necessary” does not mean that proof is required of some particular identifiable consequence in the event that an order is not made: see AB (a pseudonym) v CD (a pseudonym) (2019) 93 ALJR 321; [2019] HCA 6 at [14].
While the submissions naturally focus on the potential impact on the plaintiffs were an order not granted, it is to be borne in mind the order is not sought (nor will it be granted) for the convenience of the plaintiffs. The concern is to prevent prejudice to the proper administration of justice.
In Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4, French CJ at [20] noted the relationship between the principle of open justice and the maintenance of public confidence in the courts as independent and impartial tribunals. However, his Honour noted, that while the open court principle serves to maintain that quality, it is not absolute.
His Honour (at [21]) gave a number of examples of cases where the principle of open justice may give way to other concerns. Included in that list of examples is the example of orders made to protect the identity of a victim of blackmail. A similar observation was made in John Fairfax Publications Pty Limited v District Court of (NSW) (2004) 61 NSWLR 344; [2004] NSWCA 345 at [48]. The context of those observations was criminal blackmail, but the underpinning rationale is the same. That is, in the event that an order is not made a question may arise as to the ability or willingness of the courts to protect victims of extortion or blackmail. Persons in the position of the present plaintiffs may be more willing to succumb to the threats made than to seek protection from the courts. That would obviously, seriously undermine public confidence in the administration of justice by failing to protect persons who would otherwise be entitled to the protection of the law.
In those circumstances, it is my view that the plaintiffs have established an entitlement to at least some form of protection. As I have indicated, the plaintiffs seek a suppression order rather than a non-publication order. Having regard to the definitions of those terms, a suppression order is significantly more restrictive than a non-publication order. However, the nature of the position of each of the plaintiffs is such that, in my view, a well-targeted disclosure that may not amount to publication may well result in significant damage. That is sufficient to lead me to the view that an appropriately crafted suppression order is necessary to prevent prejudice to the proper administration of justice.
By properly crafted, I refer to the need for appropriate exceptions. In particular, the order should not prevent any party from disclosing matters related to the litigation, for the purposes of litigation; for the purposes of consulting with health professionals; or to the police. The need for disclosure within the litigation is obvious. With respect to disclosure to health professionals, litigation is something that is very likely to cause stress to those involved. The parties ought not be prevented from seeking such assistance as they need and in the course of receiving that assistance disclosing all matters relevant to the stress they may be suffering. Disclosure to the police may be necessary in the context of potential criminal offences having been committed.
With respect to the duration of any order, s 12 requires that the duration be specified. It is probably not sufficient to simply specify “until further order”: see DRJ v Commissioner of Victims Rights [2020] NSWCA 136.
In the circumstances, I propose that the order be for a period of 20 years. As I have said, in particular, acknowledging that the order is being made on an ex parte basis, it will, of course, be open to the defendant to bring an application to vary or revoke that order.
I make the following orders:
(1)Pursuant to ss 7 and 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) the publication or other disclosure of the following material is prohibited for a period of 20 years:
(a)the identity or the contact address details of any of the parties to these proceedings;
(b)any information tending to reveal the identity of or otherwise concerning any party or witness to these proceedings, or any person who is related to or otherwise associated with any party or witness to these proceedings;
(c)any document, evidence or information raised or relied upon in these proceedings, including submissions.
(2)Order 1 is subject to the following exceptions such that it does not prevent the parties from:
(a)serving or otherwise disclosing any document for the purposes of the conduct of the proceedings, including for the purposes of obtaining legal advice or representation in the proceedings;
(b)from disclosing to or discussing with the defendant’s father, matters concerned with the proceedings;
(c)disclosure to a psychiatrist or psychologist or other qualified mental health practitioner for the purposes of obtaining treatment or counselling;
(d)disclosure to an officer or employee of the New South Wales Police Force for the purposes of making an official report of a criminal offence or for the purpose of the investigation of any such offence.
(3)In the event of any disclosure within one of the exceptions referred to in order 2 to a non-party to the litigation, that disclosure is to be accompanied by disclosure of the terms of these orders.
(4)Costs reserved.
(5)Direct the plaintiffs to approach the chambers of the Defamation List Judge for the purpose of having the matter listed.
(6)Extend the interim orders made on 9 January 2025 and extended on 15 January 2025 until further order of the Court.
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