TG v MM

[2024] NSWSC 730

Supreme Court

New South Wales

Medium Neutral Citation:

TG v MM [2024] NSWSC 730

Hearing dates:

13 June 2024

Decision date:

13 June 2024

Jurisdiction:

Common Law

Before:

Faulkner J

Decision:

(1) Pursuant to the Court Suppression and Non-Publication Orders Act 2010, the name and identity of the plaintiff be suppressed until 12 June 2044, except as may be necessary for the proper conduct of these proceedings, upon the ground that the order is necessary to prevent prejudice to the proper administration of justice and is necessary to protect the safety of the plaintiff.

(2) Order 1 is to apply throughout the Commonwealth of Australia.

(3) Until further order, the plaintiff in these proceedings:

(a) be known as "TG";

(b) be described in all pleadings and all documents filed and served in the proceedings as "TG"; and

(c) except as may be necessary for the proper conduct of the proceedings, be only referred to as "TG".

(4) The name of the proceedings be changed so that the proceedings be referred to as "TG v MM".

(5) Costs of this notice of motion be reserved.

Catchwords:

COURTS AND JUDGES – Application for limited suppression order to protect identify of plaintiff – principle of open justice primary consideration – prejudice to administration of justice – safety of the plaintiff – suppression order made on limited terms

Legislation Cited:

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

Cases Cited:

John Fairfax Publications Pty Limited v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324

R v BB (No 6) [2021] NSWSC 1518

Category:

Procedural rulings

Parties:

TG (Plaintiff)
MM (Defendant)

Representation:

Solicitors:
Catherine Henry Lawyers (Plaintiff)
HWL Ebsworth (Defendant)

File Number(s):

2023/307464

JUDGMENT

1. HIS HONOUR: Before the Court is an application by the plaintiff for suppression orders under s 7(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), which I will refer to as the Statute. Related orders are also sought.

2. The application is brought by way of an amended notice of motion filed on 12 March 2024. In support of the application, the plaintiff reads an affidavit of Kim Tomasic affirmed on 27 February 2024.

3. The application is made in proceedings brought by the plaintiff against the defendant for damages for personal injury alleged to have been caused by a medical procedure alleged to have been performed by the defendant in 2012. It is unnecessary to set out all the circumstances described in the evidence before the Court on the application.

4. For the purposes of the application, that evidence demonstrates:

1. the circumstances of the procedure are likely to be regarded by patients as confidential and are in fact regarded by the plaintiff as confidential;

2. in the past, the plaintiff has been exposed to violence from a number of people;

3. the plaintiff is afraid to have attention drawn to the circumstances of the claim;

4. there has been media interest in circumstances not unrelated to the plaintiff’s claim;

5. the plaintiff works in an occupation not unrelated to the claim; and

6. the medical condition of the plaintiff, alleged not to be unrelated to the claim, includes both physical and important mental health considerations.

5. On the evidence, I accept that there is a real prospect that the plaintiff will not proceed with the claim if it will result in attention being drawn to the plaintiff.

6. In support of the application, the plaintiff’s legal representatives have filed an outline of submissions dated 29 May 2024.

7. The defendant has filed a defence dated 22 April 2024. In the defence, the defendant does not admit liability. The defendant does not oppose the application before the Court.

8. A suppression order, or a non-disclosure order, necessarily detracts from the principle of open justice, which is one of the most fundamental aspects of the system of justice in Australia. In John Fairfax Publications Pty Limited v District Court of New South Wales (2004) 61 NSWLR 344 at 352-353; [2004] NSWCA 324 at [17]-[22], Spigelman CJ, with whom Handley JA and M W Campbell AJA agreed, said:

“17  As often happens in a context involving fundamental principle, two such principles are in conflict and a judgment must be made as to which principle is to prevail in the circumstances. The principle of open justice and the principle of a fair trial each inform and energise many areas of the law, as I have sought to show in extra-judicial addresses. (See, J J Spigelman, “Seen to be done: the principle of open justice” (2000) 74 Australian Law Journal 290, 378 and J J Spigelman, “The truth can cost too much: the principle of a fair trial” (2004) 78 Australian Law Journal 29.)

18 It is well established that the principle of open justice is one of the most fundamental aspects of the system of justice in Australia. The conduct of proceedings in public including, relevantly, the taking of verdicts after a criminal trial, is an essential quality of an Australian court of justice. There is no inherent power of the Court to exclude the public. (See Scott v Scott [1913] AC 417 at 473; Dickason v Dickason (1913) 17 CLR 50 at 51; Daubney v Cooper (1829) 10 B & C 237; 109 ER 438 at 440; Russell v Russell (1976) 134 CLR 495 especially at 507 and 520-521, 532.) The taking of a verdict is something which occurs in the ordinary course of criminal proceedings. (See, for example, Coulter v The Queen (1988) 164 CLR 350 at 356, 357 and cf 359-360, 362.)

19 It is also well established that the exceptions to the principle of open justice are few and strictly defined. (See, for example McPherson v McPherson [1936] AC 177 at 200; R v Tate (1979) 46 FLR 386 at 402.) It is now accepted that the courts will not add to the list of exceptions but, of course, Parliament can do so, subject to any Constitutional constraints. (See, for example Dickason (at 51); Russell (at 520); John Fairfax Publications Pty Ltd v Attorney General (NSW) (2000) 158 FLR 81 at [70]-[73].)

20 The entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public. Nothing should be done to discourage fair and accurate reporting of proceedings. (See, for example Attorney General v Leveller Magazine Limited [1979] AC 440 at 450.)

21 From time to time the courts do make orders that some aspect or aspects of court proceedings not be the subject of publication. Any such order must, in the light of the principle of open justice, be regarded as exceptional. (See, for example, Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 50D-E and 54G.)

22 The principle of a fair trial has been characterised in numerous High Court judgments in the most forceful of terms. It has been described as “the central thesis of the administration of criminal justice”: McKinney v The Queen (1991) 171 CLR 468 at 478; as “the central prescript of our criminal law”: Jago (at 56); as a “fundamental element” or a “fundamental prescript”: Dietrich v The Queen (1992) 177 CLR 292 at 299, 326; and as an “overriding requirement”: Dietrich (at 330). It is not a new principle. As Isaacs J put it in 1923 with reference to “the elementary right of every accused person to a fair and impartial trial”: “Every conviction set aside, every new criminal trial ordered, are mere exemplifications of this fundamental principle”: R v MacFarlane; Ex parte O’Flanaghan & O’Kelly (1932) 32 CLR 518 at 541-542.”

9. A strictly defined exception to the principle of open justice has been established by Parliament in the Statute, which relevantly provides:

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.

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.

…

11   Where an order applies

(1)  A suppression order or non-publication order applies only to the disclosure or publication of information in a place where the order applies, as specified in the order.

(2)  A suppression order or non-publication order is not limited to applying in New South Wales and can be made to apply anywhere in the Commonwealth.

(3)  However, an order is not to be made to apply outside New South Wales unless the court is satisfied that having the order apply outside New South Wales is necessary for achieving the purpose for which the order is made.

12   Duration of orders

(1)  A suppression order or non-publication order operates for the period decided by the court and specified in the order.

(2)  In deciding the period for which an order is to operate, 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.

(3)  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.

10. As s 6 makes clear, the proposition with which the Court starts and which is the primary consideration under the Statute is the principle of open justice: R v BB (No 6) [2021] NSWSC 1518 at [18] (Rothman J).

11. It must be accepted that a suppression order in this case will detract from the principle of open justice. However, the orders sought on the application are for the specific purpose of protecting the identity of the plaintiff and the terms of the orders which are sought in the amended notice of motion, or which might otherwise be made, are limited to achieving that specific purpose and do not otherwise interfere with these proceedings being conducted in accordance with the principle of open justice.

12. The orders will not interfere with the public’s right to scrutinise the conduct of the Court, nor will they interfere with the implementation of justice: R v BB at [18]. The detraction from the principle of open justice which will result from such orders will be minimal.

13. Under s 7 of the Statute, the power of the Court to make a suppression order is limited to an order made on the grounds permitted by the Statute. The permitted grounds are specified in s 8. The plaintiff relies on two grounds, namely, (a) the order is necessary to prevent prejudice to the proper administration of justice and (c) the order is necessary to protect the safety of any person.

14. Ground (a) is made out in the circumstances of this case. As set out above, I accept that there is a real prospect that the plaintiff will not proceed with the claim if it will result in attention being drawn to the plaintiff. I do not consider that the plaintiff’s attitude is unreasonable in all the circumstances.

15. It is not necessary on this application to form a view about the plaintiff’s prospects of success on the claim against the defendant, nor is it possible on the evidence on the application. However, absent agreement by the defendant, the plaintiff is entitled to bring the claim and have it adjudicated by the Court. The practicality of procedures to allow the plaintiff to pursue that entitlement is a part of the administration of justice.

16. In these circumstances, the orders sought on the application are necessary to prevent prejudice to the proper administration of justice which would occur if the plaintiff was not able to bring these proceedings for fear of drawing attention to herself in the circumstances of this case.

17. Ground (c) is also made out in this case. In the context of s 8(1)(c) of the Statute, the word “necessary” does not mean “essential”. Rather, the touchstone is reasonableness: R v BB at [20]-[21].

18. I accept that there is some prospect that attention being drawn to the plaintiff may result in harm to the plaintiff, especially having regard to the past exposure to violence from a number of people and the important mental health issues addressed in the evidence.

19. The risk of attention being drawn to the plaintiff may be low, although given the media interest and the plaintiff’s occupation, it is not as low as might otherwise be the case.

20. The risk that any such attention will result in actual harm may also be low but it is not negligible, especially in relation to the plaintiff’s mental health. However, I accept that if harm does eventuate, it may be sufficiently significant to warrant the Court making suppression orders in an endeavour to reduce the risk of attention being drawn to the plaintiff in the first place.

21. For these reasons, I will make orders under s 7(a) of the Statute, moulded so as to suppress the identity of the plaintiff and not otherwise interfere with the principle of open justice.

22. I make the following orders, a copy of which I provided to the legal representatives earlier today, a further copy of which I now initial and date and place with the papers:

1. Pursuant to the Court Suppression and Non-Publication Orders Act 2010, the name and identity of the plaintiff be suppressed until 12 June 2044, except as may be necessary for the proper conduct of these proceedings, upon the ground that the order is necessary to prevent prejudice to the proper administration of justice and is necessary to protect the safety of the plaintiff.

2. Order 1 is to apply throughout the Commonwealth of Australia.

3. Until further order, the plaintiff in these proceedings:

1. be known as "TG";

2. be described in all pleadings and all documents filed and served in the proceedings as "TG"; and

3. except as may be necessary for the proper conduct of the proceedings, be only referred to as "TG".

4. The name of the proceedings be changed so that the proceedings be referred to as "TG v MM".

5. Costs of this notice of motion be reserved.

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Decision last updated: 17 June 2024