Wilson v Basson

[2020] NSWSC 512

Supreme Court

New South Wales

Medium Neutral Citation:	Wilson v Basson [2020] NSWSC 512
Hearing dates:	4 May 2020
Date of orders:	08 May 2020
Decision date:	08 May 2020
Jurisdiction:	Equity
Before:	Ward CJ in Eq
Decision:	1. Until further order of the Court, order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act), on the grounds set out in s 8(1)(a) and (c) of that Act, prohibiting the publication or disclosure of any information that reveals or tends to reveal the fact that the defendant has given evidence under a pseudonym in earlier criminal proceedings in this Court. 2. Until further order of the Court, order pursuant to s 7 of the Act, on the grounds set out in s 8(1)(a) and (c) of the Act, prohibiting the publication of any information that reveals or tends to reveal the defendant’s former identity, including, but is not limited to: (a)   the defendant’s former name; (b)   the details of the defendant’s former professional career, other than the fact that the defendant is a retired barrister; and (c)   the present address of the defendant. 3.   Liberty to apply to make any application for further or consequential orders under the Act. 4.   Pursuant to ss 11 and 12 of the Act, orders 1 and 2 above are to apply throughout the Commonwealth of Australia while these proceedings are on foot and continue thereafter until further order of the Court. 5.   Each party bear its own costs of the notice of motion filed 3 April 2020.
Catchwords:	CIVIL PROCEDURE — Hearings — Suppression and non-publication — Orders
Legislation Cited:	Competition and Consumer Act 2010 (Cth), Sch 2 Contracts Review Act 1980 (NSW) Court Suppression and Non-publication Orders Act 2010 (NSW), ss 6, 7, 8, 9
Cases Cited:	AB (A Pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46 AB v CD (2018) 93 ALJR 59; [2018] HCA 58 AB v CD (2019) 93 ALJR 321; [2019] HCA 6 Australian Broadcasting Commission v Parish (1980) 43 FLR 129; [1980] FCA 33 Brown (A Pseudonym) v R (No 2) [2019] NSWCCA 69 Commissioner of Police New South Wales v Nationwide News Pty Ltd (2008) 70 NSWLR 643; [2007] NSWCA 366 Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5 D1 v P1 [2012] NSWCA 314 Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 Hamzy v R [2013] NSWCCA 156 Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 HT v R (2019) 374 ALR 216; [2019] HCA 40 John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 John Fairfax Publications v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324 NSW v Kay [2017] NSWSC 274 Prothonotary of the Supreme Court of New South Wales v Dowling (No 6) [2018] NSWSC 1715 R v AB (2018) 97 NSWLR 1015; [2018] NSWCCA 113 R v Kwok; R v Ong; R v Tan; R v Yoe (2005) 64 NSWLR 335; [2005] NSWCCA 245 Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 Roberts-Smith v Fairfax Media Publications Pty Ltd [2019] FCA 36 Scott v Scott [1913] AC 417 Wilson v Basson [2019] NSWSC 1449
Category:	Procedural and other rulings
Parties:	Jessica May Wilson (Plaintiff) Mary Jane Basson (Defendant)
Representation:	Counsel: E W Young (Plaintiff) D Pritchard SC with A Macauley (Defendant)   Solicitors: MC Lawyers & Advisers (Plaintiff) Bartier Perry Pty Ltd (Defendant)
File Number(s):	2018/00393886
Publication restriction:	Orders made for prohibition on publication of any information that would reveal or tend to reveal the defendant’s former name, identity, former professional career (other than that the defendant is a retired barrister) or present residential address and for prohibition or presumption or disclosure of the fact that the defendant has given evidence under a pseudonym in earlier criminal proceedings in this Court.

Judgment

1. HER HONOUR: Before me for hearing on 4 May 2020 was an application, brought by notice of motion filed on 3 April 2020 by the defendant in this proceeding, seeking orders pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (Court Suppression and Non-publication Act) on the grounds set out in s 8(1)(a) and (c) of the Court Suppression and Non-publication Act. The orders that the defendant seeks are to prohibit: first, the publication or other disclosure of any information that reveals or tends to reveal the fact that the defendant has previously given evidence (under a pseudonym) in particular criminal proceedings in this Court; and, second, the publication of any information that reveals or tends to reveal the former identity of the defendant or certain details about the defendant, including the defendant’s previous professional career and present residential address.

Background

2. I do not propose, for obvious reasons, to say much as to the background of the present application, which is supported by an affidavit sworn by the defendant on 1 April 2020 (which will itself be marked as confidential on the Court file) in which the defendant deposes to the circumstances in which the defendant holds fears as to the defendant’s personal safety if information of the kind the subject of the proposed orders is published or disclosed.

3. Both the plaintiff and the defendant have referred in their respective affidavits in the substantive proceeding to the defendant’s former identity and the defendant’s former professional life.

4. Broadly speaking, the substantive dispute involves a claim by the plaintiff against the defendant, among other things seeking to set aside a settlement agreement executed by the plaintiff on 4 May 2018 (Settlement Agreement) under which the plaintiff’s interest in a successful racehorse was reduced from 50% to 10%; and claiming damages for alleged acts of defamation and unpaid employee entitlements purportedly owed to the plaintiff by the defendant.

5. Insofar as the application to set aside the Settlement Agreement is concerned, the application is made on the grounds of unconscionability and relief is sought pursuant to the provisions of the Competition and Consumer Act 2010 (Cth) sch 2 (Australian Consumer Law) and the Contracts Review Act 1980 (NSW). The matters relied upon by the plaintiff in this regard include matters referable to the defendant’s former professional life (the plaintiff relying upon an alleged “fear of repercussions by the defendant” arising by reference thereto) (see [16]-[18]; [186] of the plaintiff’s affidavit sworn 1 July 2019).

6. The claim for unpaid employment entitlements (unpaid but accrued annual leave, long-service leave, severance pay, and pay in-lieu-of notice) relates to a period in which the plaintiff claims to have worked for the defendant (pleaded to be between June 2009 and August 2015) during the course of the defendant’s former professional career.

7. The plaintiff’s claim thus raises details as to the defendant’s prior profession and, in the plaintiff’s affidavit filed in the substantive proceeding, the plaintiff deposes to a number of details of the defendant’s former professional life that are relevant to the defendant’s current fears. Without conceding the admissibility of this evidence, reference was made by the defendant to particular paragraphs of the plaintiff’s affidavit sworn 1 July 2019 in this regard (see [16]; [19]; [20]; [42]).

8. The matter has not yet been set down for hearing but I am told that the application has been made at this stage, pending final hearing, following the publication last year of an interlocutory judgment in the proceeding (Wilson v Basson [2019] NSWSC 1449), which attracted some media attention.

Relevant legal principles

9. Section 7 of the Court Suppression and Non-publication Act empowers the Court, by way of a “suppression order” or “non-publication order”, to 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.

10. Section 8 provides that the Court may make a suppression or non-publication order on one or more identified grounds, including (relevantly): that the order is necessary to prevent prejudice to the proper administration of justice (s 8(1)(a)); and that the order is necessary to protect the safety of any person (s 8(1)(c)). Such an order may also be made where 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 (s 8(1)(e)). In making such an order, the Court must specify the ground or grounds on which the order is made (s 8(2)).

11. Section 6 of the Court Suppression and Non-publication Act provides that, in deciding whether to make a suppression 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.

12. Section 9(5) of the Court Suppression and Non-publication Act provides that a suppression 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. In HT v R (2019) 374 ALR 216; [2019] HCA 40, Gordon J noted (at [82]) that this embodies the principle that “[a]ny such prohibition must do no more than is reasonably necessary to achieve the due administration of justice, based on the material before the court” (see also John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 (Fairfax v Police Tribunal) at 477, per McHugh JA as his Honour then was, Glass JA agreeing; cited with approval by Bathurst CJ and McColl JA in Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 (Rinehart v Welker) at [29]).

13. The Court of Appeal has emphasised that the operative condition for the making of a suppression order under the legislation is that the order be “necessary”; see Rinehart v Welker where Bathurst CJ and McColl JA said (at [27]) that “necessary” is a strong word which, in collocation with the necessity to prevent prejudice to the administration of justice, “suggests Parliament was not dealing with trivialities” (their Honours there citing Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 (Hogan) at [30], per French CJ, Gummow, Hayne, Heydon and Kiefel JJ); and their Honours expressly identified the legislative intention that such orders should only be made in exceptional circumstances.

14. Bathurst CJ and McColl JA concluded in Rinehart v Welker at [29] that an order is not “necessary” simply because it appears to the court “to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some ‘balancing exercise’, the order appears to have one or more of those characteristics”. This position is reinforced by the High Court’s statements in Commissioner of the Australian Federal PolicevZhao (2015) 255 CLR 46; [2015] HCA 5 (at [44], per French CJ, Hayne, Kiefel, Bell and Keane JJ) that courts will only act contrary to the open court principle in “exceptional circumstances”. See also the explanation by McHugh JA (as his Honour then was) of the principle at common law in John Fairfax (at 476-477):

The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making affair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it.

15. Additionally, Basten JA observed in Fairfax Digital Australia and New Zealand Pty LtdvIbrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 (Fairfax v Ibrahim) (Bathurst CJ agreeing with some additional comments, and Whealy JA agreeing with both Bathurst CJ and Basten JA):

The meaning of ‘necessary’ depends on the context in which it is used. In s 8(1), it is used in relation to an order of the court, or, in practical terms, a proposed order, because it identifies a standard as to which the court must be satisfied before making an order. In each paragraph of that provision, the word ‘necessary ‘ is used to describe the connection between the proposed order and an identified purpose. It may not take the same place on the variable scale of meaning in each case. In paragraph (a), the purpose of the order will be to prevent ‘prejudice to the proper administration of justice’. That language will, in its turn, have a colour which will depend upon the circumstances. The prejudice may be a possibility or a certainty; its effect, if it eventuates, may be minor or it may cause a trial to miscarry. Similarly, prevention will involve matters of degree: the proposed order may diminish a risk of prejudice or it may obviate the risk entirely. All of these variables may affect what is considered ‘necessary’ in particular circumstances.

16. This passage has been cited on numerous subsequent occasions, including in Prothonotary of the Supreme Court of New South Walesv Dowling (No 6) [2018] NSWSC 1715 at [19] per Wilson J; R v AB (2018) 97 NSWLR 1015; [2018] NSWCCA 113 at [31] per Meagher JA (Rothman and Garling JJ agreeing); and NSWv Kay [2017] NSWSC 274 at [23] per Harrison J.

17. Sub-section 8(1)(a) of the Court Suppression and Non-publication Orders Act depends on making out what is recognized to be a multi-faceted concept: “prejudice to the proper administration of justice”. I endorse what Mahoney JA (Hope JA agreeing) said about the concept in John Fairfax Group Pty Ltd vLocal Court of New South Wales (1991) 26 NSWLR 131 (John Fairfax v Local Court) at 161 (cited with approval by Bathurst CJ and McColl JA in Rinehart v Welker at [40]):

The phrase does not mean that if the relevant order is not made, the proceedings will not be able to continue. Plainly they can. If the name of an informer is not hidden under a pseudonym, the proceeding will go on: at least, the instant proceeding will... The basis of the implication is that if the kind of order proposed is not made, the result will be — or at least will be assumed to be — that particular consequences will flow, that those consequences are unacceptable, and that therefore the power to make orders which will prevent them is to be implied as necessary to the proper function of the court.

[Emphasis added]

18. In assessing whether the condition in sub-s 8(1)(c) of the Court Suppression and Non-publication Orders Act has been satisfied in any particular case, the weight of authority is that the “calculus of risk” approach is to be used (as opposed to the “probable harm” approach). Nettle J in AB v CD (2019) 93 ALJR 321; [2019] HCA 6 (AB v CD 2019 Judgment) made it clear that when assessing whether an order is necessary to protect the person’s safety, the Court must be (at [15]):

… satisfied of the existence of a possibility of harm of such gravity and likelihood that, without the order sought, the risk of prejudice to the safety of the person would range above the level that can reasonably be regarded as acceptable.

19. In AB (A Pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46 (AB v R) at [57], Hoeben CJ at CL, Price and Adamson JJ expressed this approach in the following terms.

Under the calculus of risk approach the nature of the harm (death) would carry weight in the calculus of risk which would have the effect that it would not be necessary for the court to be satisfied that it was probable that the threats would be carried out. The fact that the possible harm was so serious would lead to the court’s being satisfied under s 8(1)(c) that an order was necessary in circumstances where it could not be said to be probable that the threats would be carried out.

20. See also Brown (A Pseudonym) v R (No 2) [2019] NSWCCA 69 at [37] per Payne JA, Johnson and N Adams JJ; Hamzy v R [2013] NSWCCA 156 at [60] per Harrison J; and Roberts-Smith v Fairfax Media Publications Pty Ltd [2019] FCA 36 at [16]-[17] per Besanko J).

Defendant’s submissions

21. Turning now to the defendant’s submissions, the defendant submits that the disclosure of the information in question would be prejudicial to the administration of justice, in that it would expose the defendant to the grave risk of personal harm, so presenting the defendant with the decision as to whether to continue defending this proceeding at the real risk of serious harm. It is submitted that the restrictions sought would not materially detract from the principle of open justice nor would they substantially restrict the publication of the facts relevant to the complaints made in this proceeding. It is noted that the proposed orders would not restrict the publication of the defendant’s current identity, nor certain aspects of the defendant’s career, nor the detail of the allegations made by the parties against one another (including the nature and content of purportedly defamatory statements made by the defendant and allegations of financial misappropriation against the plaintiff). It is submitted that the orders are designed simply to prevent the defendant’s “new” identity being compromised, in circumstances where the defendant’s former identity has no material bearing on the present proceeding or the dispute between the parties.

22. The defendant accepts that the principle of open justice is a fundamental aspect of our legal system (see Rinehart v Welker at [32], per Bathurst CJ and McColl JA) but notes that it is not an absolute one, pointing to well-recognised common-law exceptions such as: blackmail and extortion cases; police informer cases (John Fairfax Publications v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324 (John Fairfax v District Court) at [48], per Spigelman CJ, Handley JA and Campbell AJA agreeing; Commissioner of Police New South Wales v Nationwide News Pty Ltd (2008) 70 NSWLR 643; [2007] NSWCA 366 (Nationwide News) at [35], per Mason P, Ipp and Basten JJA agreeing); where disclosure of the information, such as, for example, confidential information or trade secrets, would seriously affect its commercial value (see Australian Broadcasting CommissionvParish (1980) 43 FLR 129 at 134-135; [1980] FCA 33 (Parish) per Bowen CJ, cited with approval in Hogan at [42], per French CJ, Gummow, Hayne, Heydon and Kiefel JJ); the protection of a witness who might be physically harmed (Nationwide News at [36], per Mason P, Ipp and Basten JJA agreeing); and, where necessary to postpone publication of evidence in a voir dire (John Fairfax v District Court at [48] per Spigelman CJ, Handley JA and Campbell AJA agreeing).

23. The defendant further notes that the Court may identify categories that, while not coinciding exactly with the existing categories, are very closely analogous to them and have the same underlying rationale for the making of suppression or non­-publication orders (referring to R v Kwok; R v Ong; R v Tan; R v Yoe (2005) 64 NSWLR 335; [2005] NSWCCA 245 at [16] per Hodgson JA, Howie and Rothman JJ agreeing). It is submitted that this is reinforced by the fact that the Court Suppression and Non-publication Orders Act is not defined in scope by reference to existing categories of exception under the common law.

24. The defendant also points out that there is no discretion to refuse to make a suppression or non-publication order once the Court is satisfied that the order is necessary (citing Hogan at [33], per French CJ, Gummow, Hayne, Heydon and Kiefel JJ; Rinehart v Welker at [48], per Bathurst CJ and McColl JA; AB v R at [117], per Hoeben CJ at CL, Price and Adamson JJ.

21. As to such an order being “necessary” to “prevent prejudice to the proper administration of justice”, it is noted by the defendant (as indicated above) that the concept of administration of justice is a multi-faceted one and that it has been said that it arguably cannot be captured in a single statement (see RinehartvWelker at [39], per Bathurst CJ and McColl JA). That said, the defendant says that the essence of the concept is what was set out by Mahoney JA (Hope AJA agreeing) in John Fairfax v Local Court at 161 (cited with approval by Bathurst CJ and McColl JA in Rinehart v Welker at [40]), which I have set out earlier. In Parish (at 133), Bowen CJ said that the concept of prejudice to the administration of justice is a reference to the public interest that “the court should endeavour to achieve effectively the object for which it was appointed: to do justice between the parties”.

22. It is submitted by the defendant that the present case falls within the instances where, by reason of the “deleterious effects of not making a suppression or non-publication orders, the administration of justice would arguably (on real and substantiated grounds) be brought into disrepute or stifled” were the orders sought not to be made.

23. Here, the defendant says that the defendant is not seeking the orders for the purpose of preventing pain or public humiliation arising from the proceeding itself (accepting that suppression or non-publication orders would not be available in those circumstances – see Scottv Scott [1913] AC 417 at 463 per Lord Atkinson; and John Fairfax v Local Court at 142-143, per Kirby P, as his Honour then was). Rather, the defendant says that the orders are sought to prevent the defendant’s personal safety being compromised by bringing the defendant’s new identity to the attention of those who have previously threatened and menaced the defendant.

24. As to the non-publication or disclosure of the fact that the defendant gave evidence in criminal proceedings, it is noted that the evidence was given under a pseudonym (in circumstances which it is said was clearly because the Court was satisfied of a ground under s 8 of the Court Suppression and Non-publication Orders Act). It is said that the present proceeding should not operate in a manner to defeat the “evident sound basis” for the making of that order; and that, to do so, would be to deter people from giving evidence in support of criminal prosecutions because of a fear that subsequent, unrelated civil proceedings may peripherally expose this fact and their former anonymity. The defendant argues that this would be prejudicial to the proper administration of justice.

25. Independently of the fact that the defendant gave evidence in the criminal proceedings, it is said that a non-publication order of the defendant’s former identity is justified on both the grounds set out in s 8(1)(a) and s 8(1)(c) of the Court Suppression and Non-publication Orders Act by reason of the past threats that the defendant received from persons associated with known criminal organisations. It is noted that, in respect of s 8(1)(c) of the Court Suppression and Non-publication Orders Act, it is not necessary to prove that, if a non-publication order is not made, it is probable that the defendant will suffer harm; rather, adopting the “calculus of risk approach”, that a non-publication order in respect of information revealing the defendant’s former identity is warranted to prevent the defendant from being exposed to the real (as opposed to fanciful) risk of suffering significant harm if the defendant’s former identity becomes widely known.

26. It is submitted that, adopting the words of Nettle J in AB v CD 2019 Judgment at [15], on the material before this Court there is “the existence of a possibility of harm of such gravity and likelihood that, without the order sought, the risk of prejudice to the safety of the person would range above the level that can reasonably be regarded as acceptable”.

27. The defendant submits that, due to the nature of the accusations in the present proceeding, there is a real likelihood of attracting media attention (for reasons set out in the written submissions that I do not here set out); it being noted that there has already been some media attention following the interlocutory decision referred to earlier. It is accepted that some information has already been published in relation to the defendant, but it is submitted that this is not extensive, that it refers to the defendant’s new identity, and that it cannot be said that there is now no utility to making the order sought (noting that there is no evidence that the defendant’s new identity has been compromised by the publications).

28. The defendant argues that the orders sought do not materially impact upon the fundamental principle of open justice. It is said that the defendant’s former identity is not material to the issues and complaints in this proceeding. It is noted that the proposed suppression and non-publication orders do not restrict public publication or disclosure of: the defendant’s present identity (no pseudonym order here being sought); the plaintiff’s dispute with the defendant regarding her claimed entitlement to 50% of the sale proceeds of the racehorse in question; the defendant’s former profession and the alleged employment relationship between the defendant and plaintiff that is said to give rise to the plaintiff’s claim for unpaid employee entitlements; the nature and detail of the relationship between the parties (the plaintiff alleging a position of ascendency occupied by the defendant); or the nature and content of the alleged defamatory remarks made by the defendant. Thus, it is submitted that the proposed non-publication order is no greater than is reasonably necessary.

29. In written submissions, the defendant sought an order that the costs of the motion should be the defendant’s costs in the cause. In oral submissions it was submitted that, in view of the stance taken by the plaintiff (see below), the plaintiff should bear the costs of the motion if it succeeds.

The plaintiff’s submissions

34. The plaintiff’s position is that the plaintiff neither consents to, nor opposes, the substantive orders sought in the motion (though it is submitted that the costs should be the plaintiff’s costs in the cause if the motion is successful and that the defendant should pay the plaintiffs costs if it is not).

35. Nevertheless, in the nature of submissions as amicus curiae, Counsel for the plaintiff raised the following matters.

36. First, it is noted that the application must be weighed against the primary objective of open justice in the administration of justice (see s 6 of the Court Suppression and Non-publication Orders Act) and that an order should be made only if the defendant’s evidence overbears that primary objective by satisfying the Court that the order is necessary (see s 8 of the Court Suppression and Non-publication Orders Act), with the level of satisfaction being high having regard to the nature of the order and its interference with open justice.

37. The plaintiff points out that, although based on an asserted fear for the defendant’s safety, the application has been made: some months after the 2019 interlocutory judgment and subsequent media attention; some months after leave to file such a motion was first granted (on 2 December 2019); over half a year after the plaintiff served her affidavit in chief in the proceeding; and over a year after the commencement of the proceeding. It is noted that court proceedings are ordinarily conducted in a public forum and that this is for well-known and longstanding public policy reasons. The plaintiff says that it is relevant to consider whether, if the defendant genuinely held the fears now asserted, the motion would have been filed at a far earlier time and with greater urgency.

38. Second, the plaintiff says that there is no evidence of any threat to the defendant since late 2013 relating to the subject matter of the criminal proceeding in which the defendant gave evidence (and no evidence to suggest that certain other incidents in 2016 to which the defendant deposes were related to this).

39. Third, it is said, in effect, that a relevant consideration is as to the extent to which the information is already in the public domain (by reference to particular matters set out in the submissions which I will not here repeat); and that it is relevant to consider whether the defendant has acted in a manner not consistent with the claimed fear for the defendant’s personal safety.

40. Fourth, insofar as the defendant submits that if the orders sought are not made then the defendant will have to decide whether to continue defending the substantive proceeding, it is said that by the plaintiff there is no evidence by the defendant to support such a submission. Further, it is noted that the defendant has brought a cross claim in the proceeding, and it is said that the defendant has chosen to litigate in a public forum. (The defendant maintains that the cross-claim is wholly defensive – see below.)

41. Some doubt is raised in the plaintiff’s submissions as to whether the Court can be satisfied, to the necessary degree, that the defendant has any real, objectively substantiated, fears in 2020 in light of what is said to be “the defendant’s lengthy history” of taking no step to protect the defendant against the fears now asserted. It is submitted that relevant considerations include: whether, even if the defendant genuinely has a subjective fear, there is any (or any sufficient) evidence of there being any substantial prospect of harm to the defendant if no non-publication order is made (by reference to the particular matters raised in the plaintiff’s submissions, which again I do not here repeat); whether such fear is merely a possibility rather than there being any evidence as to the likelihood of any occurrence; whether making the orders sought will merely diminish any existing risk from the existing publicity as distinct from obviating any such risk; and the factual context of the existing publications and “history of the defendant’s voluntary actions and inaction to date”.

42. The plaintiff also made submissions as to whether suppression orders in relation to certain of the information sought to be suppressed (such as photographs) would be appropriate and/or have any practical utility.

Reply submissions

43. The defendant responds as follows to the plaintiff’s submissions.

44. First, as to any complaint as to delay by the defendant in bringing the present motion, the defendant emphasises that the motion does not seek that the defendant’s present identity be suppressed (rather, that the defendant’s former identity and details of the defendant’s former career, as well as the giving of evidence in the earlier criminal proceeding are suppressed). It is noted that at the time the proceeding was commenced, there was no disclosure of the defendant’s former identity; nor did the pleadings raise the information now sought to be suppressed. It is said that the application is brought now (at a time when the matter has not been yet listed for hearing) out of an abundance of caution, given the service of the defendant’s affidavit of 16 March 2020 (which makes reference to the matters the subject of the suppression application) and in light of media attention following the earlier interlocutory dispute.

45. Second, as to the genuineness of the defendant’s fears, it is said that the defendant has given cogent and compelling evidence about prior repeated threats to her personal safety (and again that the failure to bring this motion earlier is of no moment).

46. Third, as to the submission that there is no evidence of any threat to the defendant since late 2013 relating to the earlier criminal proceeding, it is submitted that this is premised upon an unfounded and unwarranted assumption that the incidents in 2016 about which the defendant deposes were “definitely unrelated” to the earlier threats.

47. Fourth, that the information in the public domain relates to the defendant’s present identity; that the submission that the defendant has not been “publicity shy” since changing identity is unfounded; and that there is no evidence that the defendant is responsible for the publication of information that has occurred.

48. Fifth, as already noted, that the cross-claim is entirely defensive (and it is noted that it does not identity the defendant’s former identity, nor any involvement with the earlier criminal proceeding).

49. Sixth, that a pseudonym order was deliberately made in the earlier (criminal) proceeding and that it has not been revisited by the Court that made it, which it is said did so cognisant of all the material facts and the potential threats of reprisal. It is submitted that it is not open to this Court to “second-guess” that informed determination by considering, on limited information, whether the public ought now know that the defendant gave evidence in that proceeding.

50. Seventh, that the plaintiff has manifestly adopted an adversarial position, and as such, the plaintiff should be ordered to pay the defendant’s costs of the motion or, alternatively, the costs occasioned by the service of submissions and evidence by the plaintiff on 1 May 2020 and the conduct of the hearing on 4 May 2020. If that submission is not accepted, it is nevertheless said that on no view could the costs of this motion be ordered to be the plaintiff’s costs in the cause. It is submitted that if the orders sought by the defendant are made, the defendant should not be deprived of recovering the costs on this motion if ultimately successful in this proceeding.

Determination

51. At the conclusion of the hearing of this application I made known the conclusion that I had reached, namely that the suppression and non-publication orders sought should (for the most part, though not wholly) be made. I indicated my concern that the orders should be anonymised to avoid reference to the very information sought to be suppressed (such as the defendant’s former identity), and directed that revised orders should be provided to my associate. I indicated that I would publish brief reasons for the decision to make those orders, which I now do.

52. I accept that the jurisdiction to make suppression and/or non-publication orders is an exceptional jurisdiction and that its exercise must be determined in accordance with that which is a primary objective of the administration of justice namely to safeguard the public interest in open justice.

53. I consider that it is necessary to prevent prejudice to the administration of justice that persons who give evidence in criminal proceedings, in circumstances where serious threats have been made against them, should have the protection of anonymity. It is not merely “convenient, reasonable or sensible” (Rinehart v Welker at [29], per Bathurst CJ and McColl JA), but of considerable importance to protect such persons to ensure the ongoing due administration of justice.

54. There are circumstances where a public interest in disclosure may outweigh the public interest in protecting the personal safety of persons in the position of, say, police informers (as was the case in AB v CD (2018) 93 ALJR 59; [2018] HCA 58 (AB v CD 2018 Judgment) at [10], [12], per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ). However, in the present case the very unique circumstances that arose in AB v CD 2018 Judgment do not apply. This is not a case where the defendant’s actions were “fundamental and appalling breaches” of the defendant’s professional obligations, such that the defendant’s anonymity “must be subordinated to the integrity of the criminal justice system” (AB v CD 2018 Judgment at [10]). No such allegation has been made against the defendant in the present case.

55. Further, I have no reason not to accept that the defendant holds genuine fears for the defendant’s personal safety. That there must have been a genuine basis for those fears can be inferred from the fact that orders were made for the giving of the defendant’s evidence in the earlier criminal proceeding under a pseudonym. The subject matter of that earlier proceeding makes credible the making of threats against the defendant of the kind that the defendant says were made.

56. Moreover, I consider that the defendant’s subsequent (life-changing) actions, in changing the defendant’s address and identity, are consistent with a genuine fear on the defendant’s part for the defendant’s own safety. I am not persuaded that the matters to which the plaintiff has pointed raise any real doubt as to the genuineness of the defendant’s concerns. Nor does the passage of time suggest that the fears can now be treated as unfounded or no longer applicable.

57. In light of the above considerations, I am satisfied of the existence of a possibility of harm of such gravity and likelihood that, without the order sought, the risk of prejudice to the safety of the person would be unacceptable, so meeting the ground in sub-s 8(1)(c) Court Suppression and Non-publication Orders Act. In the same vein, I consider that, were I not to make suppression and/or non-publication orders as sought here, the potential consequences to the administration of justice would be consequences that are unacceptable (in turn meeting the ground in sub-s 8(1)(a) Court Suppression and Non-publication Orders Act).

58. Therefore, I consider that, on the grounds in s 8(1)(a) and (c) of the Court Suppression and Non-publication Orders Act, it is necessary to make the orders sought with the exception of the orders sought in prayer 1(h). In that regard, I am not persuaded that it is necessary to prohibit the publication of a photograph of the defendant (under the defendant’s new identity, such publication having already occurred without any apparent adverse consequence). Of course, it remains open to the defendant to renew that application in due course when the matter approaches a final hearing. I will give liberty to apply, to cover that possibility.

59. Finally, as to costs, I do not accept that the plaintiff should bear the costs of the present application. It would have been necessary for the defendant to incur the costs of an application where such order was to be sought in any event. Moreover, I accept that the course taken by the plaintiff’s Counsel was in the nature of amicus curiae; and that he acted appropriately as a contradictor. Nor do I consider that the costs should be the defendant’s costs in the cause. The necessity for the present application was in no way of the plaintiff’s own making and it does not strike me as a necessary consequence of the bringing of a claim. Accordingly, I consider that the appropriate costs order is that each party bear its own costs of the present application.

Orders

60. I make the following orders:

1. Until further order of the Court, order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act), on the grounds set out in s 8(1)(a) and (c) of that Act, prohibiting the publication or disclosure of any information that reveals or tends to reveal the fact that the defendant has given evidence under a pseudonym in earlier criminal proceedings in this Court.

2. Until further order of the Court, order pursuant to s 7 of the Act, on the grounds set out in s 8(1)(a) and (c) of the Act, prohibiting the publication of any information that reveals or tends to reveal the defendant’s former identity, including, but is not limited to:

1. the defendant’s former name;

2. the details of the defendant’s former professional career, other than the fact that the defendant is a retired barrister; and

3. the present address of the defendant.

3. Liberty to apply to make any application for further or consequential orders under the Act.

4. Pursuant to ss 11 and 12 of the Act, orders 1 and 2 above are to apply throughout the Commonwealth of Australia while these proceedings are on foot and continue thereafter until further order of the Court.

3. Each party bear its own costs of the notice of motion filed 3 April 2020.

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Decision last updated: 08 May 2020