"X" v University of Western Sydney (No 4)

[2013] NSWSC 1334

Supreme Court

New South Wales

Medium Neutral Citation:	"X" v University of Western Sydney (No 4) [2013] NSWSC 1334
Hearing dates:	16 September 2013
Decision date:	16 September 2013
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	Proceedings otherwise dismissed. Defendant to pay Plaintiff's costs. Interim suppression order discharged. Final suppression orders made.
Catchwords:	ORDERS - discontinuance of remainder of claim - costs - interim suppression orders - necessity to reconsider - final suppression order.
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010
Cases Cited:	- Port of Melbourne Authority v Anshun [1981] HCA 45; 147 CLR 589 - "X" v University of Western Sydney [2013] NSWSC 1280 - "X" v University of Western Sydney (No 2) [2013] NSWSC 1318 - "X" v University of Western Sydney (No 3) [2013] NSWSC 1329
Category:	Consequential orders
Parties:	"X" (Plaintiff) University of Western Sydney (Defendant)
Representation:	Counsel: J.S. Drummond (Plaintiff) Ms R. Graycar (Defendant) Solicitors: Bateman Battersby (Plaintiff) Bartier Perry (Defendant)
File Number(s):	2013/272522
Publication restriction:	Nil.

EX TEMPORE Judgment

1. On 11 September 2013 I gave ex tempore reasons dealing with the substance of the issues raised in these proceedings ("X" v University of Western Sydney (No 3) [2013] NSWSC 1329) (the "principal judgment"). Given the urgency in which the matter had been heard and determined, there are a number of aspects of the matter that needed to be clarified. I have heard submission on those issues this morning.

Further disposition

1. The first issue to be determined is the fate of the balance of the substantive orders sought by the plaintiff. Prayer 12 of the plaintiff's summons was a claim for damages. It was not particularised or supported by a pleading. There has been some discussion about whether the defendant might later take an Anshun point (Port of Melbourne Authority v Anshun [1981] HCA 45; 147 CLR 589). Having received comfort in that regard, the plaintiff has sought leave to discontinue in respect of so much of his claim that seeks damages. Accordingly I will grant him that leave to discontinue.

1. The disposition of that prayer for relief means that all the other aspects of the summons have now been dealt with. The appropriate order will be that the summons be otherwise dismissed.

Costs

1. This leaves the question of costs. The plaintiff sought an order that the defendant pay his costs of the proceedings. Although the plaintiff was not successful in respect of the challenge to the decision to refer to the committee, he was otherwise successful in his challenge to the decision to suspend him from the University. It was submitted that was the principal issue on which the case was fought. It was the matter that gave the case the great urgency that it did.

1. Ms Graycar, Counsel for the University, did not submit to the contrary. I can indicate that I would have accepted the plaintiff's submission on this point in any event.

1. Accordingly, there will be an order that the defendant pay the plaintiff's costs of the proceedings.

Suppression order

1. In the principal judgment at [6] I adverted to the fact that the parties would be given a short opportunity to consider it and whether any suppression order in relation to any part of those reasons was warranted.

1. The parties have now had that short opportunity to consider the reasons in their written as opposed to oral form. They do not submit that any suppression order is warranted. Accordingly, there will not be any restriction on the publication of the principal judgment.

1. There was also a further interlocutory judgment published concerning a notice to produce ("X" v University of Western Sydney (No 2) [2013] NSWSC 1318). The same position applies.

1. This leaves the interim suppression order that was previously made in the proceedings ("X" v University of Western Sydney [2013] NSWSC 1280), and adverted to in the principal judgment at [5] to [6].

1. Whatever be the position of the parties, the Court cannot simply let interim suppression orders under the Court Suppression and Non-publication Orders Act 2010 (the "Act") continue forever. It needs to clarify the position so as to facilitate open justice.

1. In the initial judgment granting interim suppression orders, and in the principal judgment, I identified a number of interests that warranted the preservation of the confidentiality of a number of matters. The particular interests that were sought to be protected were those established by the Policy, namely, the preservation of the confidentiality of the complaint process. They also included the need to respect an ongoing police investigation and the fair hearing of any charges that may follow. In the principal judgment I therefore did not identify either the plaintiff or the complainant, or discuss in great detail the nature of the complaint against the plaintiff. I also did not identify the department in which the plaintiff and the complainant were studying, or name the head of the department. I used deliberately vague language when referring to certain work placements that occur as part of the plaintiff's course.

1. The interests I have identified warrant the making of a suppression order on the bases specified in ss 8 1(a), (d) and (e) of the Act. However, the interim suppression order extended to the entirety of the evidence and submissions in the proceedings. Having now heard the evidence and the submissions, it is necessary to reconsider whether an order of that width is necessary. Having reviewed all the evidence, that is, the exhibits and the affidavits, I consider that, subject to one matter, an order of the kind that was made on 6 September 2013 in relation to the evidence continues to be warranted. It is simply not possible to redact parts of the evidence and keep the sense of what remains.

1. The only matter of exception to that is that the plaintiff has sought some modification so as to allow the evidence to be provided to a psychiatrist for the preparation of some report that he proposes to submit to the University. That course is not opposed by the University, subject to the psychiatrist not being supplied with any details that would identify the complainant.

1. Accordingly, I will make an order under s 7 of the Act that all of the evidence in these proceedings not be published or otherwise disclosed, other than to the legal representatives engaged by the parties, the plaintiff personally, such officers of the defendant from whom it was or is necessary for the defendant's legal representative to obtain instructions, and to Dr Anthony Samuels, a psychiatrist, save in his case for material that would identify the complainant, and on the condition that Dr Samuels be provided with a copy of this order.

1. This then leaves the submissions and transcript of the proceedings. I have had the opportunity to review the transcript of the hearing on 10 September 2013 but not the transcript of the hearing on 11 September 2013. There was no oral evidence in the proceedings, so that the transcript only comprises submissions and the like.

1. In my view the interests that I have identified do not warrant a blanket suppression order in relation to the transcript. I will discharge order 2 on 6 September 2013. Instead I will order that so much of the transcript in these proceedings that identifies the plaintiff, the complainant, the head of the department in which the plaintiff and complainant study at the defendant, that department, the type of services provided by external third party providers of work placements to persons in the course undertaken by the plaintiff, any alleged witness to the incident the subject of the complaint against the plaintiff or the details of that incident, not be published or otherwise disclosed.

1. I will make the same order in relation to the written submissions of the parties. I will direct the parties to email to my Associate on or before 5.00pm on 17 September 2013 clean copies of their written submissions and redacted copies which give effect to that restraint.

Orders

(1)   Grant leave to the Plaintiff to discontinue that part of his Summons which seeks damages.

(2)   Order that the summons otherwise be dismissed.

(3)   Order that there be no restriction on publication of the principal judgment: "X" v University of Western Sydney (No 3) [2013] NSWSC 1329.

(4)   Order that there be no restriction on publication of the interlocutory judgment: "X" v University of Western Sydney (No 2) [2013] NSWSC 1318.

(5)   Discharge order 2 made on 6 September 2013.

(6) Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010, order that all of the evidence in these proceedings not be published or otherwise disclosed, other than to the legal representatives engaged by the parties, to the plaintiff personally, to such officers of the Defendant from whom it was or is necessary for the Defendant's legal representatives to obtain instructions, and to Dr A Samuels, a psychiatrist, save in his case for material that would identify the complainant and on condition that Dr Samuels be provided with a copy of this order.

(7) Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010, order that so much of the transcript in these proceedings that identifies the plaintiff, the complainant, the head of the department in which the plaintiff and complainant study at the Defendant, that department, the type of services provided by external third party providers of work placements to persons in the course undertaken by the plaintiff, any alleged witness to the incident the subject of the complaint against the plaintiff or the details of that incident, not be published or otherwise disclosed.

(8) Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010, order that so much of the written submissions in these proceedings that identifies the plaintiff, the complainant, the head of the department in which the plaintiff and complainant study at the Defendant, that department, the type of services provided by external third party providers of work placements to persons in the course undertaken by the plaintiff, any alleged witness to the incident the subject of the complaint against the plaintiff or the details of that incident, not be published or otherwise disclosed.

(9)   Direct the parties to email to the associate to Beech-Jones J on or before 5.00pm on 17.09.13 clean copies of their written submissions, together with redacted copies of those submissions giving effect to order 8.

(10)   Order the Defendant to pay the Plaintiff's costs of these proceedings.

Decision last updated: 17 September 2013