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.

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Judgment

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.
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.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Smith v Jones (No. 2)

Details

AGLC: Smith v Jones (No. 2) [2022] NSWSC 1321
Case: [2022] NSWSC 1321
Decision Date: 29 September 2022

CaseChat Overview and Summary

Smith v Jones (No. 2) involved a legal dispute between the plaintiff, Smith, and the defendant, Jones. The plaintiff sought to suppress and non-publish their identity in the proceedings. The case was heard in the Supreme Court of New South Wales, where the plaintiff applied for orders to suppress and non-publish their identity in the proceedings and in any reporting or publication of the proceedings. The application was based on the potential risk of serious harm to the plaintiff if their identity was disclosed, as well as the need to protect the proper administration of justice.

The court was required to determine whether it was necessary to make orders pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) to suppress the identity of the plaintiff. The court also had to decide whether such orders were necessary to prevent prejudice to the proper administration of justice and to protect the safety of the plaintiff. The court considered the risk of serious harm to the plaintiff if their identity was disclosed and the need to protect the proper administration of justice.

The court held that while the risk of serious harm to the plaintiff was significant, it was not sufficient to warrant the suppression and non-publication of the plaintiff's identity. The court found that the risk of serious harm was not so high as to outweigh the public interest in open justice and transparency. The court also found that the orders were not necessary to prevent prejudice to the proper administration of justice or to protect the safety of the plaintiff. The court held that the plaintiff could be adequately protected through other means, such as anonymity measures and security arrangements. The court ultimately declined to make the orders sought by the plaintiff.

The court did not make the orders sought by the plaintiff. The plaintiff's application for suppression and non-publication of their identity was dismissed.

Orders