SafeWork NSW v Edstein Creative Pty Ltd (No. 3)

[2023] NSWDC 335

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Edstein Creative Pty Ltd (No. 3) [2023] NSWDC 335

Hearing dates:

21 August 2023

Date of orders:

29 August 2023

Decision date:

29 August 2023

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   Dismiss the Notice of Motion filed on 21 July 2023.

(2)   Order each party to pay his or its own costs of the Notice of Motion.

Catchwords:

CRIMINAL PROCEDURE — suppression and non-publication orders — potential witness seeks order restricting publication of his name or information tending to reveal his identity — grounds — whether necessary to protect the safety of the applicant — no evidence that suffering “distress and embarrassment” is likely to prejudice safety — whether necessary to prevent prejudice to the proper administration of justice — application dismissed

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW), ss 3, 6, 7, 8

Work Health and Safety Act 2011 (NSW), ss 19, 32

Cases Cited:

AB (A Pseudonym) v CD (A Pseudonym) [2019] HCA 6

AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46

Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; (2012) 83 NSWLR 52

R v AB (No 1) [2018] NSWCCA 113

SafeWork NSW v Snap Programs Ltd; SafeWork NSW v Department of Communities and Justice [2020] NSWDC 455

Category:

Procedural rulings

Parties:

SafeWork NSW (Prosecutor)
Edstein Creative Pty Ltd (Defendant)
AB (A Pseudonym) (Applicant)

Representation:

Counsel:
C Magee (Prosecutor)
L-C Hutchinson (Applicant)

Solicitors:
Department of Customer Service (Prosecutor)
McCullough Robertson Lawyers (Applicant)

File Number(s):

2021/181676

Judgment

Introduction

1. This judgment concerns a Notice of Motion filed on 21 July 2023 by a potential witness, seeking an order prohibiting the publication of his name and of any information tending to reveal his identity. The application is made pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) (the CSNP Act).

2. The witness who is the applicant on the Notice of Motion will be referred to in this judgment as “AB”. I have delivered two previous judgments in the proceedings, which I later revised to refer to the witness as AB.

3. By an Amended Summons filed on 20 June 2023 the prosecutor SafeWork NSW (SafeWork) has brought criminal proceedings against the defendant Edstein Creative Pty Limited (Edstein). The Amended Summons alleges that Edstein was in breach of its health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) (the WHS Act).

4. The Amended Summons alleges that Edstein failed to ensure, so far as is reasonably practicable, the health and safety of workers while the workers are at work in the business or undertaking of Edstein, and the failure to comply with that duty exposed a worker, in particular AB, to a risk of serious illness contrary to s 32 of the WHS Act. The Amended Summons alleges that AB was exposed to high levels of airborne Respirable Crystalline Silica (RCS) which led to AB developing silicosis or accelerated silicosis.

The Notice of Motion

5. The Notice of Motion sought the following orders:

“1 That an order be made pursuant to section 7(a) of the Court Suppression and Non-Publication Act 2010 (NSW) prohibiting publication of the applicant’s name and of information tending to reveal the applicant’s identity until further order of the Court;

2 That pursuant to section 11(2) of the Act, the order be made to apply throughout the Commonwealth.”

6. The Notice of Motion also sought an order numbered 3, against a newspaper, that an internet article concerning the proceedings be amended so as to refer to AB not by name, but as “the worker”.

7. On the hearing of the motion, counsel for AB withdrew the claim for order 3 in the Notice of Motion. The solicitor for AB had served a copy of the Notice of Motion and an affidavit of AB in support of the motion upon the newspaper. That led the editor of the newspaper to revise the wording of the article. The internet version of the article was amended, by deleting the name of AB, and substituting the description of him as “the worker”. The editor said that she did not see that doing so impacted “the telling of the story”.

8. Thus, there was no need to obtain an order against the publisher of the newspaper, but AB still sought a non-publication order, to prevent further publicity being given to his name, for reasons set out in the affidavit evidence.

9. Both the prosecutor and the defendant did not oppose AB’s motion, nor did they consent to the orders sought.

Evidence in Support of the Motion

10. AB swore an affidavit on 20 July 2023 (Exhibit A1).

11. AB became aware of the article in the newspaper when his attention was drawn to it by a fellow workmate. He spoke to the owners and managers of Edstein, who took immediate steps to speak to their staff, and ask all of them to respect AB’s privacy. AB said in his affidavit that he was upset that details of his personal circumstances had been published without his consent as, apart from his partner and his mother, he had not told family or friends anything about his exposure to RCS or his disease. He said that he felt “embarrassed and distressed to receive contact from numerous people who knew me and who were worried about my state of health”.

12. The publication of the article caused AB to contact his immediate family members “to let them know that there was an article published about me, but that because there were ongoing legal proceedings I could not discuss it”. On the day of the publication of the article, and the following day, AB received over 20 calls on his mobile phone from close friends and associates. Each caller indicated that they had seen his name in the article and were concerned about him. AB said to each person that he was ok and that they should not believe everything that they read.

13. AB’s partner was faced with the same situation. When people spoke to her about the article, she told them that AB was the person named in the article, but that she could not otherwise say anything about it.

14. AB said in his affidavit that he wished to avoid any further distress and embarrassment for himself, his partner, his family, his work colleagues and his friends. He wanted his name “to be withheld from being published in any media”.

15. AB also relied upon the affidavit dated 21 August 2023 of his solicitor Mr M Tuohy (Exhibit A2). Mr Tuohy gave evidence concerning his dealings with the newspaper, and the end result of those dealings, which was that the name of AB was deleted from the internet version of the newspaper article.

The CSNP Act

16. Section 7(a) of the CSNP Act provides:

“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 the proceedings before the court…”

17. Section 3 of the CSNP Act defines “non-publication order” to mean “an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information)”.

18. Section 3 of the CSNP Act defines a “party” to proceedings to include “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”.

19. AB is the alleged victim in these proceedings and is a person who will undoubtedly be a witness in the proceedings. He therefore has standing to apply for an order under the CSNP Act.

20. Section 6 of the CSNP Act provides as follows:

“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.”

21. The Court of Criminal Appeal discussed the public interest in open justice in its decision in R v AB (No 1) [2018] NSWCCA 113 where it said:

“The public interest in open justice

28   Suppression Orders Act, s 6 identifies as a primary objective of the administration of justice the safeguarding of the public interest in open justice. The principle of open justice is that court proceedings should be conducted in public. As French CJ observed in Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [20], that principle is a ‘means to an end’. It ensures that the proceedings are ‘fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected’ (per Gibbs J in Russell v Russell (1976) 134 CLR 495 at 520; [1976] HCA 23). Gibbs J continued: ‘Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character.’

29   French CJ also observed in Hogan v Hinch at [22] that a ‘common law corollary of the open-court principle [is] that, absent any restriction ordered by the court, anybody may publish a fair and accurate report of the proceedings, including the names of the parties and witnesses, and the evidence, testimonial, documentary or physical, that has been given in the proceedings’. Two common law rules that illustrate the importance attached to the right to publish such a report of court proceedings are that its publication is not a contempt of court, even though it is likely to prejudice the fair trial of impending proceedings, and that such a report made in good faith is not an actionable defamation. Having so observed, McHugh JA concluded in John Fairfax & Sons v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 481 that the publication of fair and accurate reports is ‘vital to the proper working of an open and democratic society and to the maintenance of public confidence in the administration of justice’ and that in the absence of publication of reports on court proceedings there was a likelihood that they would become ‘the subject of the rumours, misunderstandings, exaggerations and falsehoods which are so often associated with secret decision making’.”

22. Section 8 of the CSNP Act provides the grounds for making an order. Section 8 says:

“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—

(a) the order is necessary to prevent prejudice to the proper administration of justice,

(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,

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

(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including sexual touching or a sexual act within the meaning of Division 10 of Part 3 of the Crimes Act 1900),

(e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.

(3) Despite subsection (1) (d), a court may make a suppression order or non-publication order on the grounds that the order is necessary to avoid causing undue distress or embarrassment to a defendant in criminal proceedings involving an offence of a sexual nature only if there are exceptional circumstances.”

23. In R v AB (No 1) the Court of Criminal Appeal said:

“30    In setting out the grounds upon which a Court may make a suppression or non-publication order, Suppression Orders Act, s 8(1) identifies in paragraphs (a) to (d) circumstances in which the public interest in securing or preventing particular outcomes will justify the making of such an order. Paragraph (e) makes express the weighing process implicit in the formulation of those earlier grounds. The public interest in open justice may be displaced if in the circumstances it is ‘necessary’ to do so.

31   In this context, as Basten JA observed (Bathurst CJ and Whealy JA relevantly agreeing) in Fairfax Digital v Ibrahim at [46]:

“The meaning of ‘necessary’ depends on the context in which it is used. In s 8(1), it is used in relation to an order of the court, or, in practical terms, a proposed order, because it identifies a standard as to which the court must be satisfied before making an order. In each paragraph of that provision, the word ‘necessary’ is used to describe the connection between the proposed order and an identified purpose. It may not take the same place on the variable scale of meaning in each case. In paragraph (a), the purpose of the order will be ‘to prevent prejudice to the proper administration of justice’. That language will, in its turn, have a colour which will depend upon the circumstances. The prejudice may be a possibility or a certainty; its effect, if it eventuates, may be minor or it may cause a trial to miscarry. Similarly, prevention will involve matters of degree: the proposed order may diminish a risk of prejudice or it may obviate the risk entirely. All of these variables may affect what is considered ‘necessary’ in particular circumstances.” (Emphasis added)

Relevant Authorities

24. In Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; (2012) 83 NSWLR 52, the Court of Criminal Appeal considered an appeal involving criminal proceedings in the District Court in which the defendants had obtained a non-publication order in respect of details of a related police investigation and the prosecution of the accused for conspiracy to murder. At [8] Bathurst CJ said that it is not sufficient that orders under the CSNP Act “are merely reasonable or sensible”. The Chief Justice agreed with Basten JA that the word “necessary” in the legislation should not be given a narrow construction. The Chief Justice indicated agreement with par [46] of the decision of Basten JA. That paragraph has been reproduced immediately above.

25. At [49] Basten JA said:

“This Court recently accepted that the ‘principle of legality’ favours a construction of s 8 which has ‘the least adverse impact upon the open justice principle and common law freedom of speech’: Rinehart v Welker [2011] NSWCA 403 at [26] (Bathurst CJ and McColl JA). However, that approach may have a more limited application in circumstances where the proposed order does not impact upon the open justice principle because it does not prevent or restrict publication of court proceedings. The ‘common law freedom of speech’ is not to be disregarded, but it provides a lesser obstacle to an order designed to prevent prejudice to the proper administration of justice.”

26. In AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46 the Court of Criminal Appeal heard an appeal from the District Court, where the trial judge had declined to make an order under the CSNP Act. The applicant had been convicted of sexual offences. His conviction led to a media and social media campaign against him, which included threats of violence. The trial judge was asked to make an order based upon s 8(1)(c) of the CSNP Act because it was submitted the order was “necessary to protect the safety of any person”.

27. At [58] the Court of Criminal Appeal referred with approval to what was said by Nettle J in AB (A Pseudonym) v CD (A Pseudonym) [2019] HCA 6. His Honour said at [15]:

“The criterion is not one of necessity to prevent harm to a person but of necessity to protect the safety of a person. And safety is a protean conception which is certainly informed by the nature and gravity of apprehended harm and the risk of its occurrence. To take but one, prosaic example, no one today rationally doubts that the wearing of seat belts while travelling in a motor car is necessary to protect the safety of drivers and passengers. At the same time, it is certainly not the case that, but for wearing a seat belt, it is more probable than not that an occupant of a moving motor car will suffer harm. That is not to suggest that just any risk of harm will suffice. To repeat, the provision is not concerned with trivialities. But what it is intended to convey is that, because the idea of safety invariably entails the assessment of risk, it should be regarded as sufficient to satisfy the test of ‘necessary to protect the safety of any person’ that, upon the evidence, the court is satisfied of the existence of a possibility of harm of such gravity and likelihood that, without the order sought, the risk of prejudice to the safety of the person would range above the level that can reasonably be regarded as acceptable.”

28. At [59] in AB (A Pseudonym) v R (No 3) the Court of Criminal Appeal said that the trial judge had focussed on physical safety but had failed to take into account the uncontroverted evidence adduced as to the risks of physical and mental injury, including the possibility of suicide, caused by an aggravation of the applicant’s mental condition. At [59] the Court of Criminal Appeal said:

“There is nothing in the statutory wording of the section to indicate that it is intended to be limited to physical safety. The wording is apt to include psychological safety, including aggravation of a pre-existing mental condition as well as the risk of physical harm, by suicide or other self-harm, consequent on the worsening of a psychiatric condition.”

29. In SafeWork NSW v Snap Programs Ltd; SafeWork NSW v Department of Communities and Justice [2020] NSWDC 455, Scotting DCJ extensively reviewed the authorities in relation to the CSNP Act. I respectfully adopt what his Honour said at [34]-[43] as follows:

“34 The primary purpose of all of the grounds set out in s 8(1) of the CS Act (except the first) is to permit a court to protect witnesses and parties in proceedings before it from disclosure of information about them to the general public: Fairfax Digital Australia and New Zealand Pty Limited v Ibrahim [2012] NSWCCA 125 at [36].

35 Each of the grounds in s 8 requires the court to consider whether the order is ‘necessary’ for a stated purpose. The meaning of the word ‘necessary’ depends on the context in which it is used. In each paragraph of s 8 of the CS Act the word ‘necessary’ is used to describe the connection between the proposed order and an identified purpose: Fairfax Digital at [46]. In Hamzy v R [2013] NSWCCA 156 at [39]-[40] Hoeben CJ approved the interpretation of necessity that was adopted in Fairfax Digital.

36    To establish that an order is necessary, it is not enough that it appears to the Court that the proposed order is convenient, reasonable or sensible: Rinehart v Welker [2011] NSWCA 403 at [31] and D1 vP1 [2012] NSWCA 314 at [48].

37 An applicant who relies on the grounds specified in s 8(1)(c) of the CS Act 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. Consideration must be given to alternate ways in which the probability of harm could be prevented, for example, if the evidence establishes that a more limited prohibition on publication may not eliminate the risk or possibility of serious injury but would have the effect of rendering it improbable. The alternative construction of s 8(1)(c) of the CS Act requires that the Court be satisfied on the balance of 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 pre-condition. 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. Alternate steps to the making of an order would also need to be considered on this construction: D1 v P1 [2012] NSWCA 314 at [48]-[51].

38    Matters relevant to a risk to safety include whether there would be risk (continuing or arising) to the safety of persons and the likelihood and seriousness of its possible consequences. It also directs attention to whether the continuation of the suppression order would be likely to prevent or minimise any existing risk and to whether there are alternative actions that might be taken in response to that risk, which would otherwise achieve the same outcome: R v AB (No 1) [2018] NSWCCA 113 at [42].

39    The calculus risk approach requires the court to consider the ‘nature, imminence and degree of likelihood of harm occurring to the relevant person’: AB v R (No 3) [2019] NSWCCA 46 at [56]. If the prospective harm is very severe it may be more readily concluded that the order is necessary, even if the risk does not rise beyond a mere possibility

40   It is necessary to keep in mind that the effect of the orders sought may have little adverse impact on the principle of open justice, such as where the orders sought do not prevent or restrict the publication of court proceedings generally: Fairfax Digital at [49].

41   The principle of open justice is that court proceedings should be conducted in public. This ensures that the proceedings are fully exposed to public and professional scrutiny and criticism without which abuses may flourish undetected. The public administration of justice tends to maintain confidence in the integrity and independence of the Courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character: R v AB at [28].

40   The overriding public interest is in ‘open justice’ and any ground upon which an order is based must be balanced against that overriding public interest. For example, if a non-disclosure order were reasonably required or legally ancillary to protect the safety of some person and formed a basis for making of an order, when balanced against the primary objective of the administration of justice to safeguard the public interest in open justice, the Court may determine not to issue the non-disclosure order.

41 The wording of s 8(1)(e) may create a tension between s 8 and s 6 of the CS Act but also points to the term ‘necessary’ not being utilised to mean ‘essential’. The tension is superficial, because s 8(1)(e) requires the public interest otherwise to be outweighed significantly by the primary objective. If ‘necessary’ meant ‘essential’ then the public interest in s 8(1)(e) could never be outweighed by the primary objective: R v AB at [77] – [79].”

Consideration

30. Section 6 of the CSNP Act identifies that a primary objective of the administration of justice is to safeguard the public interest in open justice. Part of the system of open justice is that anybody may publish a fair and accurate report of proceedings, which includes the names of witnesses – see [29] in R v AB (No 1), referred to above.

31. The primary submission made by counsel for AB was that a non-publication order was necessary to protect the safety of AB – s 8(1)(c) of the CSNP Act. The authorities say that the safety of any person is not just physical safety but includes psychological safety – see [59] in AB (A Pseudonym) v R (No 3), referred to above.

32. The court needs to be satisfied of the existence of a possibility of harm of such gravity and likelihood, that without a non-publication order being made, the risk of prejudice to the safety of the person would range above the level that can reasonably be regarded as acceptable – see [15] in AB (A Pseudonym) v CD (A Pseudonym), referred to above.

33. It is not enough that the proposed order is convenient, reasonable or sensible – see [36] in SafeWork NSW v Snap Programs Ltd, referred to above.

34. The evidence put forward by AB rises no higher than establishing that on the day of publication of the article in the newspaper, and the next day, he was contacted by many well-meaning family members and friends, to enquire about his welfare. I accept that this caused him “distress and embarrassment”. However, there is no evidence that, apart from those two days, any person has made any contact with AB, so as to cause him further distress and embarrassment. Having said that, I infer that there would be residual distress, if only from the concern that further mention of his name would cause distress and embarrassment to AB, particularly if there is further publication of his name.

35. No medical evidence was tendered in this application, of the kind which was put forward in AB (A Pseudonym) v R (No 3). No evidence was led, of the kind tendered in SafeWork NSW v Snap Programs Ltd, to show that there was a likelihood that a vulnerable person would have an impact upon their psyche and their well-being, if certain information were published.

36. It is most unpleasant to suffer distress and embarrassment, but those feelings do not rise to the level of a psychological threat to safety. There was no evidence in this case that suffering distress and embarrassment was likely to prejudice the safety of AB. While one can have great sympathy for the plight of AB, feelings of distress and embarrassment, and no doubt feelings of anxiety and apprehension, would be felt by most victims and witnesses.

37. In one category of offences, not relevant to these proceedings, the CSNP Act gives power to make an order if there is “undue distress or embarrassment” – s 8(1)(c) of the CSNP Act. The existence of that ground for making an order in cases involving a sexual crime rather suggests that, for other types of offences, distress or embarrassment simpliciter will not provide grounds for an order.

38. I find that AB has not established that it is necessary to make a non-publication order to protect his safety.

39. At my request, counsel for AB also addressed whether the court should make an order under s 8(1)(a) of the CSNP Act ie an order necessary to prevent prejudice to the proper administration of justice.

40. On reflection, I find that it would be inappropriate to consider making an order under s 8(1)(a), in light of the evidence that both AB and his partner have conscientiously dealt with enquiries made of them, by simply saying that the matter is the subject of court proceedings and they cannot talk about it further. There is no evidence that any people who contacted AB belaboured the point and kept asking him about the proceedings, after he told them that he could not say anything further.

41. Counsel for SafeWork appeared on the hearing of AB’s application, firstly to indicate to the court that the prosecutor was neutral in relation to the application for a non-publication order, and secondly to make submissions in order to assist the court. Counsel for SafeWork pointed out that in the usual course there would be no further judgment published between now and the trial, and in those circumstances there would be no risk of interfering with the proper administration of justice, because there would be no publication of the name of AB in the near future.

42. I find that I should not make an order for non-publication under the CSNP Act, because AB cannot establish any of the grounds in s 8 for making such an order. In this judgment and my two previous judgments in the matter, I have referred to AB by pseudonym, without any opposition by the prosecutor or the defendant. I take the same view as the editor of the newspaper contacted by the solicitors for AB, that there is no need in this, and the previous judgments, for the name of AB to be set out in full. There is clearly no impediment to the administration of open justice by, at this stage, referring to AB by a pseudonym.

43. When the matter eventually goes to trial, it would be a matter for the trial judge whether the same procedure is followed.

Orders

44. The orders of the court are:

1. Dismiss the Notice of Motion filed on 21 July 2023.

2. Order each party to pay his or its own costs of the Notice of Motion.

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Decision last updated: 29 August 2023