Storer v State of New South Wales
[2023] NSWSC 1043
•11 August 2023
Supreme Court
New South Wales
Medium Neutral Citation: Storer v State of New South Wales [2023] NSWSC 1043 Hearing dates: 11 August 2023 Date of orders: 11 August 2023 Decision date: 11 August 2023 Jurisdiction: Common Law Before: Garling J Decision: See [11]
Catchwords: CIVIL PROCEDURE – suppression and non-publication – whether necessary to make order pursuant to the Court Suppression and Non-publication Orders Act 2010 with respect to documents produced under subpoena – order not made – instead, confidentiality regime imposed with respect to those who accessed the documents
Legislation Cited: Court Suppression and Non-Publication Orders Act 2010
Cases Cited: Not Applicable
Texts Cited: Not Applicable
Category: Principal judgment Parties: Raymond Michel Storer (P)
State of New South Wales (D)Representation: Counsel:
Solicitors:
S Cai (P)
M Sutton (D1)
J DE Saint Simon (D2)
R LeBherz (D3)
S Craig (for Catholic Church Insurance Ltd)
Koffels (P)
Crown Solicitor’s Office (D1)
BNLaw (D2)
Corrs Chambers Westgarth (D3)
File Number(s): 2021/363034 Publication restriction: Not Applicable
EX TEMPORE JUDGMENT
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On 7 June 2023, the solicitors for the plaintiff in these proceedings served a subpoena on the proper officer of Catholic Church Insurance Ltd (“CCI”). Insofar as is presently relevant, that subpoena sought the production of the following documents:
"2. All statements of persons alleging themselves to be child victims of Robert (Dolly) Dunn’s (“Dunn”) sexual abuse or sexualized behaviour.
3. All statements of persons alleging themselves to be child victims of Brother Ronald Blyth’s* sexual abuse or sexualized behaviour.
4. All reports about or against Dunn alleging sexual abuse, touching, sexualized behaviour, physical abuse, excessive discipline or similar by Dunn where such document came into existence between 1.1.1970 – 1.1.1986.
5. All reports about or against Dunn alleging sexual abuse, touching, sexualized behaviour, physical abuse, excessive discipline or similar by Dunn where such document came into existence between 1.1.1986 – date.
* Blyth was the former principal of Marist College, Penshurst during, at least, 1977"
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CCI applies for orders pursuant to the Court Suppression and Non-publication Orders Act 2010 (“the Act”) that would restrict or prohibit the disclosure of the full name of the complainants, or other identifying details, to any person other than parties to the proceedings. CCI also applies for orders that complainants are referred to by pseudonyms to be agreed between the parties in due course, and that the publication of any of the complainants’ full names and any other particulars which might enable them to be identified is prohibited.
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I am informed by Ms Craig, solicitor for CCI, that all of the documents have been prepared, and have been produced in unredacted form.
CCI’s Concerns
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I am informed by Ms Craig that the concern of CCI is that sensitive information contained in the documents, namely the identification of the complainants who have been the victim of sexual abuse or other similar conduct, ought not be published in any court document, including in any judgment.
Discernment
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I do not criticise CCI for being concerned about taking such steps as are appropriate to ensure that confidentiality and to limit the disclosure of such sensitive information. However, I am not persuaded that, without more evidence, that it would be open to the Court to make any order under the Act because before any such order can be made, the Court must be satisfied that any such order is necessary to be made for a purpose of prohibiting or restricting disclosure of that information: s 8.
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It is notorious that in proceedings in this Court, many plaintiffs resist having pseudonym orders or non-disclosure orders made. Such complainants take the view that it is not appropriate in the circumstances for such orders to be made, and that they are entirely comfortable with their names being revealed. An example of that approach is the plaintiff in this case who has not sought any pseudonym order or suppression or non-publication order.
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Without evidence which addresses the particular circumstances of each of the names that may be revealed in the documents which are to be produced on subpoena, it is simply not possible to conclude that an order under the Act is necessary.
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I do note that if any of the named individual complainants or victims has been a witness in or a complainant in criminal proceedings, then there are in existence already statutory orders which prohibit the identification of such a person in connection with those proceedings. Nothing which I am about to do is intended to affect or in any way derogate from those statutory prohibitions.
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However, it does seem to me that the better course is to impose a confidentiality regime with respect to those who accessed the documents. The power to do so is contained within the inherent power of the Court in granting access to documents produced on subpoena.
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Accordingly, I will proceed by way of making the following confidentiality orders.
Orders
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In respect of the subpoena issued by the plaintiff to Catholic Church Insurance Ltd and filed on 5 June 2023:
Order that access to the documents produced in response to that subpoena be limited to the solicitors and counsel who are retained to act for each of the plaintiff and first, second and third defendants.
Order that with respect to such access by solicitors and counsel, that any inspection of the documents in unredacted form be limited to the parties, instructed solicitor, and counsel. That the parties, solicitors, and counsel will not further use or disclose the identifying details, being names, addresses, telephone number or other contain details of complainants other than the plaintiff without leave of the Court first being granted.
Order that in the event a party seeks to tender in the proceedings any documents produced in response to the subpoena, then such party will seek an appropriate confidentiality order from the Court at the time such documents are tendered.
The Court notes that the orders are not intended to prevent solicitors and counsel from seeking instruction from their clients with respect to the contents of those documents.
Grant the parties and Catholic Church Insurance Ltd liberty to apply with respect to any issue arising from these orders.
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Decision last updated: 30 August 2023
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