SG v NSW Crime Commission

[2015] NSWSC 881

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	SG v NSW Crime Commission [2015] NSWSC 881
Hearing dates:	2 July 2015
Date of orders:	02 July 2015
Decision date:	02 July 2015
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	See paragraph 13
Catchwords:	PRACTICE AND PROCEDURE - suppression and non-publication orders – orders necessary to protect plaintiff’s safety – pseudonym order made - orders made for duration of plaintiff’s life
Legislation Cited:	Court Suppression and Non-Publication Orders Act 2010 (NSW) ss 7, 8, 9, 12
Category:	Procedural and other rulings
Parties:	SG (Plaintiff) New South Wales Crime Commission (First Defendant) State of New South Wales (Second Defendant)
Representation:	Counsel: S Hartford-Davis (Plaintiff)     Solicitors: Laxon Lex Lawyers
File Number(s):	2015/194130

Judgment: ex tempore

Introduction

1. The plaintiff seeks leave to file in court a statement of claim (verified by the plaintiff) to commence proceedings against the NSW Crime Commission and the State of New South Wales for damages for breach of agreements said to have been reached with the NSW Crime Commission for monies to be paid to the plaintiff for services he rendered as a police informer over the course of several years. The plaintiff also sought leave to file in Court associated particulars; an affidavit dated 2 July 2015 of John Laxon, the plaintiff’s solicitor; and a notice of motion returnable instanter.

2. The notice of motion seeks orders, pursuant to ss 7 and 8(1)(c) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (the Act), that publication or disclosure of certain matters be prohibited on the ground that suppression and non-publication of such documents and matters are necessary to protect the plaintiff’s safety. A pseudonym order is also sought: namely that the plaintiff be assigned the litigation pseudonym "SG". All references to legislative provisions in these reasons are references to the Act, unless otherwise specified.

Facts

3. In his affidavit Mr Laxon deposes that the plaintiff was a police informer for a number of years in the course of which he provided information and services of benefit to the police. He also deposes that the plaintiff’s life is at risk if his identity becomes known. At this stage of the proceedings it is not necessary to say anything further about the factual circumstances in which the dispute as to remuneration arose.

Relevant legislative provisions

4. The Act provides that I must take into account, in deciding whether to make a suppression order or non-publication order, that a primary objective of the administration of justice is to safeguard the public interest in open justice. The Court has power to make a suppression order or non-publication order during proceedings: s 9(3). Such an order may prohibit or restrict the publication or other disclosure of information tending to reveal the identity of a party to the proceedings: s 7(a).

5. The grounds for making such an order include that the order is necessary to protect the safety of any person: s 8(1)(c). A suppression order or non-publication order must specify the ground or grounds on which the order is made: s 8(2). A party to the proceedings has standing to apply for such an order: s 9(1)(a).

6. A suppression order or non-publication order must specify the information to which the order applies with sufficient particularity to ensure that the order is limited to achieving the purpose for which the order is made: s 9(5).

7. A suppression order or non-publication order operates for the period specified in the order: s 12(1). The Court is to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made: s 12(2). The period for which an order operates may be specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event: s 12(3).

The attitude of the defendants to the plaintiff’s application

8. Mr Hartford-Davis, who appeared on behalf of the plaintiff and mentioned the matter on behalf the first defendant, informed me that both defendants consented to the orders sought in the notice of motion.

Consideration of whether to make the order

9. I am satisfied on the basis of the material in Mr Laxon's affidavit of 2 July 2015 and the allegations contained in the verified statement of claim that it is appropriate to grant such an order to prevent publication of the plaintiff’s name or information that would tend to identify him. I am satisfied under s 8(1)(c) that the order is necessary to protect the plaintiff's safety, having regard to the work he is alleged to have performed as a police informer.

10. The orders sought in the notice of motion do not specify a duration for the orders sought. However, as referred to above, s 12(2) requires me to ensure, when deciding the period for which an order is to operate, that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made.

11. In light of the material in Mr Laxon's affidavit as to the nature of the work performed by the plaintiff over the years and the circumstances in which it was performed, I am satisfied that the risk of reprisal for his role as a police informer is unlikely to abate to any significant degree over time. I am satisfied, in these circumstances, that it is reasonably necessary to make the non-publication and suppression order last for the duration of the plaintiff's life.

12. Accordingly, I am satisfied that it is appropriate to make orders in accordance with prayers 1 and 2 of the notice of motion filed today on the ground that they are necessary to protect the plaintiff’s safety. I specify that both orders are to operate for the lifetime of the plaintiff or until further order.

Orders

13. I make the following orders:

1. Order pursuant to ss 7 and 8(1)(c) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) that publication or disclosure of:

1. The name of the Plaintiff, or any detail from within the court file, or from the evidence in the proceedings, that either identifies, or tends to identify, the Plaintiff; and

2. The document entitled “Particulars”, filed with the Statement of Claim;

3. The affidavit verifying the Statement of Claim; and

4. The affidavit of John Laxon dated 2 July 2015;

5. be prohibited, on the ground that suppression and non-publication of such documents is necessary to protect the safety of the Plaintiff.

2. Order that the Plaintiff be assigned the litigation pseudonym “SG”.

3. I specify that orders 1 and 2 are to operate for the lifetime of the plaintiff or until further order.

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Amendments

08 July 2015 - Cover sheet amended.

Decision last updated: 08 July 2015