Smith v Jones (No. 3)

[2022] NSWSC 1448

Supreme Court

New South Wales

Medium Neutral Citation:

Smith v Jones (No. 3) [2022] NSWSC 1448

Hearing dates:

Order made in Chambers after further written submissions provided 21 October 2022

Date of orders:

24 October 2022

Decision date:

24 October 2022

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

Until further order, the parties in these proceedings will be known as Helen Smith and Stephen Jones upon the grounds specified in s 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) that this order is necessary to prevent prejudice to the proper administration of justice.

Catchwords:

CIVIL PROCEDURE – Suppression and non-publication – necessary to make an order providing pseudonyms to the parties to reflect obligations under s 121 of the Family Law Act 1975 (Cth)

Legislation Cited:

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

Family Law Act 1975 (Cth)

Cases Cited:

DOQ17 v Australian Financial Security Authority (No 3) [2019] FCA 1488

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

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 16 September 2022 I refused an application by the plaintiff for a suppression order over her name: Smith v Jones (No. 2) [2022] NSWSC 1321. The bases for the application made no reference to s 121 of the Family Law Act 1975 (Cth).

2. I subsequently became aware of this provision and its effect which makes it an offence to publish an account of a Family Law proceedings (or any part of it) that identifies or tends to identify persons who are parties to that proceeding.

3. On the basis that my judgment in the primary proceedings - then not yet published - dealt in detail with correspondence in and details about proceedings between the parties under the Family Law Act, I took the view that the parties should assist the Court with further brief written submissions.

4. Submissions were provided on 21 October 2022. Both parties concurred with my preliminary view that s 121 on its face appeared to require at the least, a pseudonym order protecting the identity of the parties.

The relevant legislation and principles

5. Section 121(1) of the Family Law Act states:

121 Restriction on publication of court proceedings

(1)   A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:

(a)   a party to the proceedings;

(b)   a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or

(c)   a witness in the proceedings;

commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.

6. There are some exemptions provided under s 121(9):

(9)   The preceding provisions of this section do not apply to or in relation to:

(a)   the communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings; or

(aa) the communication of any pleading, transcript of evidence or other document to authorities of States and Territories that have responsibilities relating to the welfare of children and are prescribed by the regulations for the purposes of this paragraph; or

(b)   the communication of any pleading, transcript of evidence or other document to:

(i)   a body that is responsible for disciplining members of the legal profession in a State or Territory; or

(ii)   persons concerned in disciplinary proceedings against a member of the legal profession of a State or Territory, being proceedings before a body that is responsible for disciplining members of the legal profession in that State or Territory; or

(c)   the communication, to a body that grants assistance by way of legal aid, of any pleading, transcript of evidence or other document for the purpose of facilitating the making of a decision as to whether assistance by way of legal aid should be granted, continued or provided in a particular case; or

(d)   the publishing of a notice or report in pursuance of the direction of a court; or

(da) the publication by the court of lists of proceedings under this Act, identified by reference to the names of the parties, that are to be dealt with by the court; or

(e)   the publishing of any publication bona fide intended primarily for use by the members of any profession, being:

(i)   a separate volume or part of a series of law reports; or

(ii)   any other publication of a technical character; or

(f)   the publication or other dissemination of an account of proceedings or of any part of proceedings:

(i) to a person who is a member of a profession, in connection with the practice by that person of that profession or in the course of any form of professional training in which that person is involved; or

(ia) to an individual who is a party to any proceedings under his Act, in connection with the conduct of those proceedings; or

(ii) to a person who is a student, in connection with the studies of that person; or

(g) publication of accounts of proceedings, where those accounts have been approved by the court.

7. Counsel for the plaintiff submitted none of these exemptions applied. I agree.

8. As noted in DOQ17 v Australian Financial Security Authority (No 3) [2019] FCA 1488 per Perry J at [135] to [137]:

“[135] Significantly in this regard, s 121 was introduced together with s 97(1) of the Family Law Act which provided as a presumptive rule that all proceedings are to be heard in open court. As the 1983 Explanatory Memorandum explained (at p. 1), significant amendments to the Family Law Act to be made by the Bill included:

Ÿ provision that proceedings under the Act be heard in open court;

Ÿ replacement of the absolute prohibition on the publication of details of proceedings under the Act by a prohibition on the publication of details that identify individuals involved in those proceedings; …

[136] As such, the primary purpose of these amendments was self-evidently to strike a balance between safeguarding the public interest in open justice on the one hand, and protecting the privacy of litigants and their families given the special nature of family law proceedings and the fact that they often involve children, on the other hand: see Sitwell v Sitwell [2014] FamCAFC 5 (Sitwell) at [33].

[137] Equally, in qualifying the fundamental principle of open justice recognised by s 97(1), s 121 facilitates the administration of justice in the public interest in family law matters. Thus, not only does it protect by way of a prohibition the privacy of litigants and their families for their own benefit; it also ensures that evidence can be led on highly personal matters and which may affect the interests of minors without fear that the identity of the parties and their family would be disclosed save in the limited circumstances provided for by s 121(9). Absent such a protection, the fear of public disclosure might have a chilling effect upon the giving of evidence in such matters to the detriment of the proper administration of justice. That is a matter affecting the public interest as it bears upon the maintenance of public confidence in the courts exercising jurisdiction under the Family Law Act, and is not merely of concern to the litigants and their families who are directly affected.”

9. Suppression and non-publication orders are dealt with in the Court Suppression and Non-publication Orders Act 2010 (NSW). It provides relevantly in Part 2 of that Act as follows:

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.

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.

(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.

9 Procedure for making an order

(1) A court may make a suppression order or non-publication order on its own initiative or on the application of—

(a) a party to the proceedings concerned, or

(b) any other person considered by the court to have a sufficient interest in the making of the order.

(2) Each of the following persons is entitled to appear and be heard by the court on an application for a suppression order or non-publication order—

(a) the applicant for the order,

(b) a party to the proceedings concerned,

(c) the Government (or an agency of the Government) of the Commonwealth or of a State or Territory,

(d) a news media organisation,

(e) any other person who, in the court’s opinion, has a sufficient interest in the question of whether a suppression order or non-publication order should be made.

(3) A suppression order or non-publication order may be made at any time during proceedings or after proceedings have concluded.

(4) A suppression order or non-publication order may be made subject to such exceptions and conditions as the court thinks fit and specifies in the order.

(5) 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.

Submissions, Decision and Order

10. Counsel for both parties submitted that the making of orders protecting the identity of the parties by way of a pseudonym would protect the proper administration of justice in this case by ensuring comity with the scheme of anonymity mandated by s 121 of the Family Law Act. I agree.

11. The only other option would be to remove from the primary judgment all the references to the Family Law proceedings. This is not a viable option as the reasoning underpinning the judgment relies upon details in correspondence between the parties in those Family Law proceedings and if reference to that material was removed, the judgment would be incomplete and the reasoning elliptical.

12. In my view, the only practical way to serve the obligation to safeguard the public interest in open justice is to provide the full reasons, but with pseudonyms to protect the parties’ interests under s 121 of the Family Law Act.

13. I am satisfied the order is necessary to prevent prejudice to the proper administration of justice and I make the following order:

1. Until further order, the parties in these proceedings will be known as Helen Smith and Stephen Jones upon the grounds specified in s 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) that this order is necessary to prevent prejudice to the proper administration of justice.

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Decision last updated: 26 October 2022