Smith v Jones (No. 2)

[2022] NSWSC 1321

Supreme Court

New South Wales

Medium Neutral Citation:

Smith v Jones (No. 2) [2022] NSWSC 1321

Hearing dates:

16 September 2022

Date of orders:

29 September 2022

Decision date:

29 September 2022

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

The plaintiff’s application for suppression of her identity is refused and her notice of motion filed 5 September 2022 is dismissed with costs.

Catchwords:

CIVIL PROCEDURE – suppression and non-publication – whether necessary to make order pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) to suppress the identity of the plaintiff – whether orders are necessary to prevent prejudice to the proper administration of justice – whether orders are necessary to protect the safety of the plaintiff – order not made

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW)

Cases Cited:

AB (A Pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46

A Lawyer (a pseudonym) v Director of Public Prosecutions NSW; Nationwide News Pty Limited v A Lawyer (a pseudonym) [2020] NSWSC 1713

Smith v Jones [2022] NSWSC 1191

Welker and Ors v Rinehart [2011] NSWSC 1094

Category:

Procedural rulings

Parties:

Helen Smith (Plaintiff)
Stephen Jones (Defendant)

Representation:

Counsel:
K Balendra (Plaintiff)
E Anderson (Defendant)

Solicitors:
Melinda Griffith Lawyers (Plaintiff)
Wyatts Lawyers and Advisors (Defendant)

File Number(s):

2021/00176194

Publication restriction:

These proceedings referred in detail to aspects of proceedings between the parties under the Family Law Act 1975 (Cth). It is an offence contrary to s 121 of that Act to publish information that identifies persons in connection with such proceedings. In order to maintain the efficacy of that protection, pseudonym orders have been made in these proceedings to prohibit the identification of the person concerned in the Family Law proceedings. Those orders were made on 24 October 2022.

Choose an item.

Judgment

1. On 9 September 2022 I delivered a judgment in these proceedings refusing Ms Smith’s application for a declaration that she was under a disability between June 2009 and June 2021 and so was not statute-barred from maintaining the proceedings: Smith v Jones [2022] NSWSC 1191.

2. In that same judgment I dealt with Mr Jones’ application to dismiss the proceedings. That application was successful, and the proceedings were dismissed with costs.

3. Prior to delivery of the judgment, Ms Smith’s solicitor notified my chambers that she intended to apply for an interim order under s 10 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (“the Act”) over the whole of the judgment.

4. Rather than proceed that way, I decided to briefly restrict publication of the judgment to the parties and their legal representatives, pending a hearing of the suppression application on its merits which was listed on 16 September 2022.

5. Having considered the notice of motion filed on 5 September 2022 and the affidavit material and written submissions, and having considered the arguments made on 16 September 2022, for the reasons that follow, I am of the view that there is no valid basis upon which to suppress the identity of the plaintiff and the notice of motion is dismissed with costs.

6. The grounds relied upon for the suppression order under s 7 of the Act are that it is necessary to prevent prejudice to the proper administration of justice: (s 8(1)(a)), and in the alternative, that it is necessary for the plaintiff’s safety: (s 8(1)(c)).

7. Section 6 of the Act highlights the safeguarding of public interest in open justice:

6   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.

8. Section 7 of the Act provides for the power to make orders:

7   Power to make orders

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 proceedings before the court, or

(b)  information that comprises evidence, or information about evidence, given in proceedings before the court.

9. Section 8 of the Act provides the grounds for making an order:

8   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.

….

10. In support of the application, two affidavits of Ms Smith were read. The first, sworn on 5 September 2022 asserted that she “may have” experienced “another dissociative event” while in the witness box being cross-examined on 30 March 2022, and that she holds concerns about the publication of her name, citing what she said is the “pervasive and insidious nature of personal abuse of women who speak out about male-perpetrated violence”. Ms Smith mentioned her perception of some examples of that behaviour, (towards Rosie Batty for example). She asserted that because her name, “Smith”, is unusual, it would make her easy to track down by anyone “with a similar agenda of harassment”.

11. Ms Smith’s affidavit annexed a short report of Dr Jordan, Psychiatrist, dated 3 September 2022. That report stated that if Ms Smith’s name is published in relation to the proceedings, “she may be exposed to unkind or offensive commentary” which “could trigger a relapse of severe symptoms”.

12. Also annexed to the affidavit is a short report of Lisa Chapman, Counsellor and Psychotherapist, dated 29 August 2022, who repeated Ms Smith’s fear that publication of her name in association with the assault “may result in her being subjected to commentary and criticism” which “she (Ms Smith) worries will exacerbate her mental health”. Ms Chapman goes on to say: “To this effect I would support an application for a suppression order”.

13. A second affidavit of Ms Smith sworn 16 September 2022 was read. Ms Smith asserted in this affidavit that publication of the judgment would affect her capacity to engage in her profession, thus s 8(1)(a) (prejudice to the administration of justice) is enlivened. The basis asserted was a single incident where Ms Smith appeared as a claims officer at a settlement conference on behalf of her employer insurer in 2019. The solicitor for the defendant, Mr Broom, by coincidence happened to be involved in the same matter on the other side and also attended the conference. Ms Smith asserted that Mr Broom raised that she had a conflict of interest which could impact her views on the matter they were about to discuss.

14. Based on that single event, Ms Smith asserted a concern that any lawyer representing a claimant alleging psychological injuries “may become aware of this matter and allege that I have a conflict of interest”.

15. Ms Smith further alleged that her involvement in these proceedings has impacted her work and she is “very concerned” others will recognise her name in the proceedings or recognise her through searches and that the personal matters in the proceedings could be “used against her in her work” or “through contact from members of the public”.

16. Mr Broom gave short oral evidence in response to the matters raised in Ms Smith’s 16 September 2022 affidavit. He stated that in completely unexpected circumstances, he ended up at a settlement conference with Ms Smith at a time when she was self-represented in her family law proceedings against Mr Jones in which Mr Broom also acted for Mr Jones. He became concerned that it was inappropriate for the conference to continue given that situation. He stated that he advised his client that the settlement conference should not proceed. The settlement conference did not proceed and the matter subsequently resolved.

17. Counsel for Mr Jones, Mr Anderson, submitted that it is very difficult to see how the publication or disclosure of Ms Smith’s identity could negatively affect the process by which the legal system is administered in New South Wales. He argued that first, a core precept of the legal system is that parties to litigation have their disputes heard and determined in public. (I interpolate here that all of the proceedings, including this application and an application for indemnity costs, were all heard in open court).

18. Second, Mr Anderson submitted that there is no identified reason or pressing matter of public interest that would justify a departure from the usual position.

19. Third, this is not a case where open justice would destroy the attainment of justice in the case. There is no evidence beyond that bald assertion of concern on the part of Ms Smith, that disclosing her identity might interfere with her capacity to engage in her profession. The real source of Ms Smith’s concern seems to be directed to the findings made about her by the Court, as opposed to the nature of the allegations underlying it. It would be inappropriate to grant a suppression order on the bases asserted and would not be reflective of proper administration of justice.

20. In terms of the assertions by Ms Smith underlying the s 8(1)(c) ground, these concerns appear to be speculative and based only upon possible comment by persons unrelated to the proceedings that might possibly cause deterioration in her mental state. The prospect of negative commentary regarding an obscure judgment in the Common Law Division of this Court provoking personal attacks on Ms Smith should be assessed as vanishingly remote or non-existent.

21. In short, it was submitted that there is no proper basis under the Act for the orders sought to be made.

22. Ms Balendra, Counsel for Ms Smith, submitted that the judgment raises questions about aspects of Ms Smith’s character in terms of findings about her honesty and credibility. She is a person involved in the administration of justice because of her job, and her fears in relation to interference with the ability for her to do her job are valid. This was demonstrated by what happened at the settlement conference with Mr Broom. That prevented her from doing her job on that day. Ms Smith fears that kind of event could occur again if the judgment was published. Further, searchable terms in judgments published on Caselaw mean that the judgment could be found, and the recognisability of Ms Smith’s name means it would be easy to identify her and interfere with her being able to carry out her job which involves providing instructions to an insurer in legal proceedings that may have issues similar to those dealt with in these proceedings.

23. Ms Balendra submitted that s 8(1)(c) was satisfied by the evidence in the reports from Dr Jordan and Ms Chapman that Ms Smith’s mental health symptoms could be exacerbated by conduct that may occur as a result of the judgment being published, and that she may be subjected to “commentary” and “threats”.

Decision

24. The Act is clear in its terms. The primary objective is safeguarding public interest in open justice.

25. Obviously enough, the open justice principle must yield in some circumstances where open justice would defeat the attainment of justice: Welker and Ors v Rinehart [2011] NSWSC 1094 per Brereton J (as he then was) at [11]. This is not such a case.

26. The unusual circumstances and single incident at the settlement conference in 2019 described by Ms Smith in her 16 September 2022 affidavit arose prior to, and completely independently of, this judgment. It illustrates nothing more than an unfortunate coincidence where both Ms Smith and Mr Broom were going to be required by their professional roles to be in a negotiation situation involving somebody else’s personal injury claim. That was one particular instance that could have been avoided with some pre-planning and has nothing at all to do with these proceedings.

27. Other assertions by Ms Smith in her affidavit are nothing but speculation.

28. In AB (A Pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46 (“AB v R”) the Court, comprising Hoeben CJ at CL, (as he then was), Price and Adamson JJ, when considering an application for a suppression order on the grounds that it was necessary to protect the safety of a person, determined that the correct approach to the interpretation of s 8(1)(c) of the Act is the “calculus of risk approach”. This requires a court to consider the nature, imminence and degree of likelihood of harm to the relevant person when determining whether an order is necessary to protect the safety of the person: AB v R at [55] to [58].

29. Whilst “safety” within the Act can include “psychological safety”, including aggravation of a pre-existing mental condition: (see AB v R at [59]), mere embarrassment, discomfort, reputational damage or even financial loss are not sufficient to justify a departure from the principle of open justice. It is not enough for a person to identify that they will develop or aggravate a psychological condition. The assertion must be considered in the context of all of the circumstances, including the nature and severity of that psychological condition and the (potential) severity of any possible aggravation: A Lawyer (a pseudonym) v Director of Public Prosecutions NSW; Nationwide News Pty Limited v A Lawyer (a pseudonym) [2020] NSWSC 1713 at [49] to [53] and [97] per Cavanagh J.

30. Both Dr Jordan’s and Ms Chapman’s opinions were heavily qualified, and neither supported more than a chance, dependant on other events, of a possibility of aggravation to Ms Smith’s psychiatric and/or psychological health.

31. This is too speculative a basis upon which to make a finding that the order is necessary to protect her safety.

32. I am not satisfied that either of the asserted grounds under s 8(1) of the Act have been made out.

33. The suppression order sought in the notice of motion is refused. The notice of motion is dismissed with costs.

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