Z v Mental Health Review Tribunal (No 3)

[2023] NSWCA 38

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Z v Mental Health Review Tribunal (No 3) [2023] NSWCA 38

Hearing dates:

23 February 2023

Date of orders:

8 March 2023

Decision date:

08 March 2023

Before:

Kirk JA at [1]

Decision:

(1) Order 4 made in these proceedings on 1 December 2015 and all subsequent variations of that order are revoked.

(2) Direct that in the records and systems of this Court the applicant continues to be referred to as “Z” (noting that this does not restrict the content of any reasons for judgment).

(3) The parties to the hearing on 23 February 2023 are to bear their own costs in relation to the hearing.

(4) List the matter for directions before the Registrar of the Court of Appeal on Wednesday 15 March 2023 or such other date as is fixed by the Registrar.

Catchwords:

CIVIL PROCEDURE — Hearings — Suppression and non-publication — Orders — Power to review the Suppression Order by the Court of Appeal — Powers of a single Judge of Appeal — Public interest does not significantly outweigh the competing public interest in open justice — Suppression Order should be lifted — Retention of Applicant’s pseudonym for the records and systems of this Court

MENTAL HEALTH — Jurisdiction — Supreme Court — Power on appeals — Publication of names (s 162 of the Mental Health Act) — Whether s 162 affects any order that should be made under the Court Suppression Act — Whether s 162 binds the Supreme Court or the Court of Appeal — Whether s 162 encompass appeal proceedings from the Tribunal — Whether s 162 requires the Court to make orders under the Court Suppression Act — Inconsistent authorities on issue — General prohibition on identifying a relevant person

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

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

Mental Health Act 2007 (NSW)

Mental Health (Forensic Provisions) Act 1990 (NSW)

Supreme Court Act 1970 (NSW)

Uniform Civil Procedure Rules 2005

Cases Cited:

Attorney General for the State of New South Wales v Boyce(No 2) [2017] NSWSC 648

Attorney General of New South Wales v Huckstadt(No 2) [2017] NSWSC 595

Attorney-General (NSW) v Doolan [2015] NSWSC 177

Attorney-General (NSW) v TP (by her tutor Thompson) [2015] NSWSC 1656

Attorney-General (NSW) v XY [2014] NSWCA 466

Attorney-General of New South Wales v Kereopa(No 3) [2017] NSWSC 929

Attorney-General of New South Wales v McGuire [2017] NSWSC 1572

Attorney-General of New South Wales v WB (Preliminary) [2019] NSWSC 1664

Burton v Director of Public Prosecutions [2022] NSWCA 242

Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4

KD v BS [2022] NSWSC 887

Minister for Mental Health v Paciocco [2017] NSWSC 4

Misrachi v The Public Guardian [2019] NSWCA 67

Nationwide News Pty Ltd v JS and SD [2022] NSWSC 774

New South Wales Minister for Health v BB [2015] NSWSC 1418

New South Wales Ministry of Health v W (2020) 102 NSWLR 969; [2020] NSWCA 212

Porter v Dyer (2022) 402 ALR 659; [2022] FCAFC 116

Russell v Russell (1976) 134 CLR 495

Sara White v Local Health Authority [2015] NSWSC 417

Scott v Scott [1913] AC 417

State of New South Wales v BP (Preliminary) [2019] NSWSC 699

Z v Mental Health Review Tribunal [2015] NSWCA 373

Z v Mental Health Review Tribunal [2015] NSWSC 1943

Z v Mental Health Review Tribunal (No 2) [2022] NSWCA 131

ZLF v South Western Sydney Local Health District [2019] NSWSC 101

Category:

Procedural rulings

Parties:

Z (Applicant)

Michael McHugh, Patrick Griffin, Stewart Cameron, Christopher Moore, Roderick Cameron, David Fischl, Paul Hendriks, Cameron Leaver, Najeh Marhaba, and Quincy Wong (Bar Association Respondents)

Attorney-General of NSW (Respondent)

Representation:

Advocates:
Z (in person)
KC Morgan SC (Bar Association Respondents)
RJ Pietriche (Attorney-General of NSW)

Solicitors:
Hicksons Lawyers (Bar Association Respondents)
Crown Solicitor’s Office (Attorney-General of NSW)

File Number(s):

2015/00291241

Publication restriction:

Note Orders (1)-(2).

Judgment

1. In late 2015 this Court made a broadly expressed suppression order in this proceeding (the Suppression Order) in the following terms:

Pursuant to the Court Suppression and Non-publication Orders Act 2010, prohibit the disclosure of information tending to reveal the identity of the applicant, including by disclosure of information which might indirectly lead others to identify the applicant.

2. The order has since become the basis of contempt of court complaints made by the applicant in the matter, who has to date been given the pseudonym “Z”. The contempt allegations arose in the following context. After the Suppression Order was made the applicant qualified as a lawyer, was admitted as a legal practitioner, undertook the Bar Practice Course run by the NSW Bar Association, and sought from the Bar Council a practising certificate as a barrister, which was refused. In the course of seeking admission as a legal practitioner the applicant herself disclosed these proceedings and her identity as “Z” to the Legal Profession Admission Board. A similar disclosure was made to the Bar Association when the applicant sought a practising certificate. The applicant brought proceedings in the Supreme Court in connection with the refusal decision of the Bar Council (the 2019 proceedings). In the course of that case material was tendered by the Bar Council which disclosed that the applicant was Z in this matter. It was that action which is a central focus of the contempt allegations against persons connected with the Bar Association (Bar Association respondents).

3. On 22 July 2022 I determined three motions in the proceedings arising out of the contempt allegations: Z v Mental Health Review Tribunal (No 2) [2022] NSWCA 131 (Z (No 2)). I summarily dismissed parts of the applications and struck out other parts, leaving part of one application to proceed to hearing. I also dismissed the applicant’s motion seeking to review a decision of the Registrar of the Court of Appeal. For completeness, I note that the applicant has sought a review of my decision pursuant to s 46(4) of the Supreme Court Act 1970 (NSW) and r 51.58 of the Uniform Civil Procedure Rules. That application has not yet been heard.

4. In my decision I also directed, pursuant to s 13(1) of the Court Suppression and Non-publication Orders Act 2010 (NSW) (Court Suppression Act), that this matter be listed for further hearing before me for review of the Suppression Order along with all subsequent orders varying that order. This judgment arises out of that order. The applicant had foreshadowed making an application that I disqualify myself from undertaking the review on the basis of apprehended bias. That application was not pursued.

5. In the review hearing the Bar Association respondents were jointly represented, and proposed orders which would have replaced the Suppression Order with a non-publication order. The applicant initially opposed those orders and sought that the Suppression Order stay on foot. However, shortly before the hearing she changed position and consented to the Suppression Order being lifted and not replaced with any orders. The Bar Association respondents consented to that proposal, although their senior counsel fairly acknowledged in the course of the hearing that there may be reasons not to act on the parties’ consent.

6. The Attorney-General of New South Wales – who was a party to the original proceedings in this Court, as contradictor, and who had been subject of a contempt allegation – was represented, took a neutral stance on what orders should be made, and provided helpful submissions addressing the legal and factual issues. The applicant, the Bar Association respondents and the Attorney-General are all persons who have a sufficient interest in the question at hand to be heard: note s 13(2), Court Suppression Act.

7. For the reasons below, I will make the consent orders proposed but will make a further direction, as a matter of court administration, that in the records and systems of this Court the applicant continues to be designated as “Z”. In what follows I first set out the context in which these issues arise, then address the significance of s 162 of the Mental Health Act 2007 (NSW) and the conflicting authorities relating to its possible application, before considering the submissions of the parties and what orders should be made.

Background

The making of the Suppression Order

8. Basten JA explained the context of this proceeding at [1] of Z v Mental Health Review Tribunal [2015] NSWCA 373 (Z (No 1)):

The applicant, Z, has been diagnosed as suffering from paranoid schizophrenia (a diagnosis Z does not accept). The applicant has, in the recent past, been detained in hospitals as an involuntary patient, pursuant to the Mental Health Act 2007 (NSW). On 3 June 2015 the Mental Health Review Tribunal made a community treatment order, requiring Z to attend at a community health centre, in part for medication administered by depot injection on a monthly basis.

9. The applicant appealed to the Supreme Court with respect to the community treatment order, without success. Her appeal from that decision to this Court was successful based upon the nature of the review that the Supreme Court had undertaken. Bergin CJ in Eq dissented. The Court remitted the matter to the Supreme Court for further consideration. By the time the matter was again before the Supreme Court the community treatment order had expired and the issues were held to be moot: Z v Mental Health Review Tribunal [2015] NSWSC 1943.

10. In Z (No 1) Basten JA, under a heading “Non-publication order”, said the following with respect to the Suppression Order:

[3] The proceedings in this Court, in accordance with the practice in protective list matters, were conducted in closed court. Further, the parties jointly requested an order under the Court Suppression and Non-publication Orders Act 2010 (NSW) (“Non-publication Orders Act”) prohibiting the disclosure of information tending to reveal the identity of the applicant, which would include non-disclosure of information which might indirectly lead others to identify the applicant [citing s 7 of the Act].

[4] There is an important public interest in ensuring that persons who have been subject to detention or orders for compulsory treatment on the basis of mental illness should be able to exercise statutory rights of appeal without the fear of prejudice or public humiliation which might follow from the disclosure of the person’s identity. The Mental Health Act reflects that policy in relation to matters before the Tribunal, or any person “involved in” any proceedings under this Act [citing Mental Health Act, s 162(1)]. Consistently with that policy, the Court made an order prohibiting publication of the name of the applicant, or any information tending to reveal the identity of the applicant. The order was made on the basis that the public interest so identified significantly outweighed the public interest in open justice, for the purposes of s 8(1)(e) of the Non-publication Orders Act. (It was not contended that s 162 had that effect of its own force.)

[5] The Court reserved its position with respect to the further request by the applicant, that its reasons for judgment not be published. Although that request was based upon the proposition that any disclosure of information concerning the history of the applicant would be likely to reveal the applicant’s identity in some circles, that would be an unusual step for the Court to take. The issue raised has been carefully considered in the course of preparing these reasons with the intention that personal information which is not essential to the conclusion reached should not be disclosed. The Court is satisfied that, in the result, such limited disclosure as will occur does not warrant non-publication of the Court’s reasons.

[6] In making that assessment, it was noted that both the form and the effect of a non-publication order can involve a nuanced exercise. Thus, people with some information about the circumstances of the person concerned will be able to identify the person as the subject of the proceedings more readily than members of the general public with no such information. Accordingly, the scope of any order and its likely effect will need to be assessed on a case by case basis and weighed against the interference with the public interest in open justice referred to in s 6 of the Non-publication Orders Act. …

11. At [4] his Honour said that “the Court made an order” in terms of the suppression order, suggesting that it was made in the course of the hearing. However, the order is included in the orders pronounced in the judgment. Emmett AJA wrote separately but indicated he agreed with the orders proposed by Basten JA. His Honour did not address the suppression issue. It can be inferred that his Honour agreed with the reasons of Basten JA as to the making of the order. Bergin CJ in Eq also did not address the issue. Her Honour’s proposed orders did not include a suppression order.

12. As I noted in my earlier decision, it appears from [3] of Z (No 1) that the Suppression Order was jointly requested by the active parties in the appeal (the applicant and the Attorney-General) and I infer it was drafted by them.

Difficulties with the Suppression Order

13. In the course of hearing and determining the three motions a number of apparent infelicities in the drafting of the Suppression Order came to light, which I set out in Z (No 2) at [124]-[132] and [217]. None of the participants in the current hearing sought to suggest that I had erred in outlining these difficulties.

14. First, the Suppression Order is expressed in terms of prohibiting “the disclosure of information tending to reveal the identity of the applicant”. This cannot be read literally. The order is obviously directed to protect the identity of the applicant as the applicant in the proceeding – that is to say, as the litigant “Z” who had brought the appeal. It cannot sensibly be read as preventing the applicant herself, or others, identifying her in ways not connected to the proceeding.

15. Secondly, the Order does not “specify the ground or grounds on which the order is made”, as required by s 8(2) of the Court Suppression Act. That being said, the ground was identified in the judgment at [4], namely that it was necessary in the public interest pursuant to s 8(1)(e).

16. Thirdly, the Order does not indicate its duration, inconsistently with the requirement in s 12(1) of the Court Suppression Act: cf eg Nationwide News Pty Ltd v JS and SD [2022] NSWSC 774 at [45]; Porter v Dyer (2022) 402 ALR 659; [2022] FCAFC 116 at [28] and [166].

17. Fourthly, the order is expressed as a suppression order, even though the relevant part of the judgment is headed “Non-publication order”. The Act draws a distinction between the two types of order. A non-publication order is defined in s 3 as one which “prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information)”. The term “publish” is defined to mean “disseminate or provide access to the public or a section of the public by any means” (emphasis added), with four inclusive examples then given. A suppression order is defined as “an order that prohibits or restricts the disclosure of information (by publication or otherwise)”. The prohibition/restriction is thus broader than a non-publication order, because its reach is not limited to dissemination of the information to the public or a section of the public. Despite the heading in the judgment, given that the order is expressed to “prohibit the disclosure of information”, and does not employ the notion of publication, it must be regarded as a suppression order and not a non-publication order.

18. Fifthly, an issue arises as to whether the Suppression Order should be construed as restricting the applicant herself from disclosing her identity in connection with the proceedings. The Order was designed to protect her privacy as part of the broader public interest in facilitating persons subject to community treatment orders being able to exercise their statutory rights “without the fear of prejudice or public humiliation which might follow from the disclosure of the person’s identity”: Z (No 1) at [4]. There could be very good reason for the applicant to disclose her identity to others in connection with the 2015 proceedings. She might have wished, or now wish, to seek legal advice about the proceedings or the effect of the Suppression Order itself. She might wish to discuss the case in the context of seeking medical or psychological assistance. She might wish to discuss it with a partner, relative or friend.

19. Further, the contempt allegations made by the applicant against the Bar Association respondents arises ultimately out of the fact that the applicant herself disclosed these proceedings and her identity as “Z” to the Legal Profession Admission Board and then to the Bar Association in the course of seeking (respectively) admission as a legal practitioner and a practising certificate as a barrister. As I noted at [10]-[13] of Z (No 2), the applicant’s actions in this regard involved frank and appropriate disclosures to relevant regulators, yet, on a literal reading of the Suppression Order, might be thought to involve a breach of that order.

20. Sixthly, and more generally, circumstances have evolved significantly since the Suppression Order was made. As I noted in Z (No 2) at [217]:

Further, there have been a number of amendments made or sought to the operation of the Order to allow particular steps to be taken. The applicant herself asked for some variation to be made to the Suppression Order in the course of the 2019 proceedings … More recently, … the Bar Association applied in September 2020 for variation of the Order to permit it to provide other regulatory authorities with a copy of its reasons for decision for refusing the applicant’s application for a practising certificate. As reflected in those applications, circumstances have changed since the Order was made. As the applicant put to me in oral address, “I think, your Honour, when the order was made it was envisaged that that was the end. I was not pursuing a career in law at that time. So, this set of circumstances was certainly not foreseen” ...

21. It was in this context that I directed that the Suppression Order be reviewed.

Power to review the Suppression Order

22. The Suppression Order was made by the Court of Appeal and is capable of being reviewed by that Court. Under s 13(1) of the Court Suppression Act, a court may review a suppression order on its “own initiative”. Upon a review, it “may confirm, vary or revoke the order and may in addition make any other order that the court may make under this Act”: s 13(3).

23. Although the Suppression Order was made by at least two members of the Court, doing so in the context of resolving an appeal to the Court, it is open to me to review the Order under s 13. Section 46(2)(b) of the Supreme Court Act 1970 (NSW) provides that a single Judge of Appeal may exercise the powers of the Court of Appeal “to make any order or give any direction in any appeal or other proceedings, but not an order or direction involving the determination or decision of the appeal or other proceedings”. A review involves consideration of whether it is appropriate that the Order continue in place in its current form in light of the circumstances as they now stand. Undertaking a review under s 13 is not an appeal from the making of the Suppression Order (cf s 14 of the Court Suppression Act, which deals with appeals). And the Suppression Order itself was not the subject of the appeal in Z (No 1). It was an order made in the course of determining an appeal from a decision relating to a community treatment order.

24. Needless to say, the reasons given for making the suppression order in the first place require careful consideration in undertaking a review.

The significance of s 162 of the Mental Health Act

25. Section 162 of the Mental Health Act provides as follows:

Publication of names

(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person—

(a) to whom a matter before the Tribunal relates, or

(b) who appears as a witness before the Tribunal in any proceedings, or

(c) who is mentioned or otherwise involved in any proceedings under this Act or the Mental Health and Cognitive Impairment Forensic Provisions Act 2020,

whether before or after the hearing is completed.

Maximum penalty—

(a) in the case of an individual—50 penalty units or imprisonment for 12 months, or both, or

(b) in the case of a corporation—100 penalty units.

(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings of the Tribunal that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or material that identifies the person or is likely to lead to the identification of the person.

26. In her first affidavit the applicant said that s 162 “permanently prohibits the publication of my name”. This statement was understood by the Bar Association respondents and the Attorney-General to suggest that the section had some direct application or relevance to this proceeding, and they provided submissions in response disagreeing with that suggestion. The applicant did not develop the point in submissions, given her decision to consent to the Suppression Order being lifted. However, if s 162 has some application or relevance to this proceeding that may affect what, if any, order should be made under the Court Suppression Act.

27. There is conflicting authority of this Court on the topic. There is some authority supporting the suggestion that s 162 is relevant and operative, at least in some way and to some extent. The decision in this Court of Attorney-General (NSW) v XY [2014] NSWCA 466 related to an appeal from a decision of the Mental Health Review Tribunal under the Mental Health (Forensic Provisions) Act 1990 (NSW). In a brief discussion Basten JA indicated that a non-publication order relating to disclosure of the identity of the respondent should be revoked, as his Honour was not satisfied it was justified under the Court Suppression Act. It is not clear from the judgment if that revocation in fact occurred. His Honour went on to say that “[i]n any event, such an order is not necessary” (at [186]). After quoting s 162, he said at [187]:

It may be accepted that s 162 applies to the proceedings in this court, so that it is appropriate that this judgment not use the respondent’s name. However, for this court to make any order to that effect is not merely otiose, but might be thought to affect the Tribunal’s power to consent.

28. Beazley P did not address this issue. McColl JA agreed with the reasons and proposed orders of the President (at [119]), but also expressed her agreement with the reasons of Basten JA. Given that it is not apparent that the revocation suggested by his Honour in fact took effect, it may be that McColl JA’s agreement with Basten JA’s reasons did not extend to that issue.

29. In any event, in Z (No 1), handed down a year later, Basten JA made the Suppression Order at issue here without referring to XY. His Honour did say, at [4], that “[i]t was not contended that s 162 had that effect of its own force”.

30. Moreover, a similar issue arose on a leave application in Misrachi v The Public Guardian [2019] NSWCA 67 relating to s 65(2)-(4) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), which is in materially the same terms as s 162 of the Mental Health Act. The Court did not refer to XY. However, Bell P and Emmett AJA there said:

[15] A similar formulation to s 65(2) appears in s 162 of the Mental Health Act 2007 (NSW) which was considered by Adamson J in Attorney General of New South Wales v Huckstadt (No 2) [2017] NSWSC 595 (Huckstadt (No 2)) who said at para [60]:

The public interest in the protection of vulnerable persons and the rights which accrue to them on that basis, is pre-eminently a matter for Parliament. By making express provision for non-disclosure in circumstances which do not extend to proceedings in this Court, Parliament has, in my view, made its intention clear. In these circumstances, it is not for this Court to make a general adjustment to rights which would apply irrespective of the circumstances of the individual case, on the assumption that Parliament would have achieved that result had it thought of it.

[16] Whilst not applying to appeals from NCAT decisions such as that brought by the current applicant and pending in this court (see para [3] above), s 65 of the NCAT Act evinces a legislative sensitivity to the publication or broadcasting of the identity of persons involved in guardianship matters, including the name of any person to whom the proceedings relate.

[17] The salient points to be noted for present purposes are, first, that an order made in guardianship proceedings in NCAT suppressing the name of a person or persons to whom those proceedings relate pursuant to s 64 of the NCAT Act will not automatically be carried through to appeals from such proceedings in this Court and will be more difficult to obtain pursuant to s 8 of the Court Suppression Act than under the NCAT Act, and, secondly, that the statutory prohibition on third party publication contained in s 65 of the NCAT Act does not apply to guardianship proceeding in the Supreme Court. Whether or not that difference in approach was deliberate, as Adamson J considered in Huckstadt (No 2), or inadvertent may be open to question but it is a difference that may lead to different regimes applying to guardianship proceedings in NCAT and this Court.

31. The decision of Secretary, New South Wales Ministry of Health v W (2020) 102 NSWLR 969; [2020] NSWCA 212 (Secretary v W) concerned an appeal relating to certain orders made by the Tribunal with respect to a mentally ill person was detained as an involuntary patient. At [6] Simpson AJA, speaking for the Court, said as follows, without referring to either XY or Misrachi:

At the commencement of the hearing the court made orders, pursuant to s 8(1)(e) of the Court Suppression and Non-publication Orders Act 2010 (NSW):

(i) prohibiting publication of any information that reveals or tends to reveal the identity of the first respondent;

(ii) that the first respondent be identified in the proceedings by the pseudonym “W”; and

(iii) that these orders are operative throughout the Commonwealth and for the duration of the first respondent’s life.

Those orders are necessary in the public interest in order to give effect to s 162(1) of the [Mental Health Act], which prohibits, without the consent of the Tribunal (which has not been given), the publication of (inter alia) the name of any person to whom a matter before the Tribunal relates. The public interest includes avoiding unnecessary distress or embarrassment to the person concerned.

32. Many first instance decisions in the Supreme Court have also considered these issues as regards s 162 or similar provisions: eg Attorney-General (NSW) v Doolan [2015] NSWSC 177; Sara White v Local Health Authority [2015] NSWSC 417; New South Wales Minister for Health v BB [2015] NSWSC 1418; Attorney-General (NSW) v TP (by her tutor Thompson) [2015] NSWSC 1656; Minister for Mental Health v Paciocco [2017] NSWSC 4; Attorney General of NSW v Huckstadt (No 2) [2017] NSWSC 595; Attorney General for the State of New South Wales v Boyce (No 2) [2017] NSWSC 648; Attorney-General of New South Wales v Kereopa (No 3) [2017] NSWSC 929; Attorney-General of New South Wales v McGuire [2017] NSWSC 1572; State of New South Wales v BP (Preliminary) [2019] NSWSC 699; ZLF v South Western Sydney Local Health District [2019] NSWSC 1016; Attorney-General of New South Wales v WB (Preliminary) [2019] NSWSC 1664; KD v BS [2022] NSWSC 887. Again, there are some tensions between these decisions.

33. In the context of the conflicting decisions, it is appropriate that I record my own reasons for concluding that the points made in Misrachi, and effectively applied in Secretary v W, are apposite as regards s 162 of the Mental Health Act.

34. A series of overlapping issues arise about the potential application of s 162 to proceedings such as this, as was drawn out in the submissions of the Attorney-General.

35. First, does s 162 bind the Supreme Court or this Court itself? The answer is no. The provision applies to “a person” and in general that term does not encompass a Court: Huckstadt (No 2) at [40]-[47]; Z (No 2) at [127]. There is no reason to conclude that that reference was meant to encompass a court here.

36. Secondly, do the following references in s 162 encompass appeal proceedings from the Tribunal under the Mental Health Act in the Supreme Court or this Court, so as directly to restrict what people may say with respect to the identified issues in proceedings in those courts:

1. “a matter before the Tribunal”, in s 162(1)(a);

2. “before the Tribunal in any proceedings”, in s 162(1)(b);

3. “any proceedings under this Act”, in s 162(1)(c)?

37. In my view the answer is no. The terms “matter” and “proceedings” are not defined in the Mental Health Act. Section 162 is in Chapter 6 Part 2 of the Act. Section 149 provides that that Part, and any regulations made under it, “apply to any proceedings of the Tribunal under this or any other Act”. Thus, although s 162(1)(c) does not refer to proceedings in the Tribunal, it should be understood in that way. More generally, Chapter 7 of the Act deals with “Jurisdiction of Supreme Court” (to quote the heading). Within that chapter, ss 163-164 deal with appeals to the Supreme Court. That type of proceeding is described as “an appeal”. An appeal to the Supreme Court is a distinct proceeding to the matter/proceeding in the Tribunal. Section 164(2) provides that such an appeal “is to be by way of a new hearing” and new evidence may be given. An appeal to this Court from the Supreme Court is made under s 101 of the Supreme Court Act 1970 (NSW).

38. Section 164(1) does provide that in dealing with an appeal, the Court has “all the functions and discretions of the Tribunal in respect of the subject-matter of the appeal, in addition to any other functions and discretions it has”. That section does not mean that the Court sits as the Tribunal, nor that the appeal is a continuation of the proceedings in the Tribunal. Similarly, s 164(3) provides that the decision of the Court on appeal “is, for the purposes of this or any other Act or instrument, taken to be, where appropriate, the final determination of the Tribunal and is to be given effect to accordingly”. That provision addresses how the decision of the Court is to be characterised or treated for legal purposes. Again, it does not mean that the appeal proceeding is a continuation of the Tribunal proceeding.

39. More generally, s 162 creates a criminal offence with the effect of restricting open justice. The importance of that principle in courts is recognised and given effect to in the Court Suppression Act. If the Parliament had intended s 162 to apply directly so as to restrict what people may say about proceedings in the courts, clearer language would have been employed.

40. It may be that my conclusion on this issue is contrary to what is implicit in XY at [187]. However, it is consistent with what was assumed in Misrachi and Secretary v W, along with most of the Supreme Court decisions referred to at [32].

41. Thirdly, does s 162 require the Court to make orders under the Court Suppression Act? Again, the answer is no. It is not expressed in that way and, where the issue is otherwise dealt with by the grant of carefully conditioned powers in the Court Suppression Act, one would expect clear terms were the Parliament to have intended to cut across that regime.

42. Fourthly, there is an available argument that s 162 potentially does affect indirectly what people may say about proceedings in the Supreme Court or this Court, in that it may limit what can be said about such proceedings insofar as to do so would be, for example, to reveal the name of the person to whom a matter before the Tribunal related. That construction would come close to having the same effect as the arguments just rejected because it would greatly restrict what could be said about relevant court proceedings. However, it is not necessary for me to determine that point here.

43. In sum, in my view s 162 does not bind the Supreme Court or this Court, does not apply directly to proceedings in the Supreme Court or this Court, and does not require that orders be made under the Court Suppression Act. Rather, and consistently with what was held in Misrachi and Secretary v W, a party wishing to restrict identification of someone in an appeal from proceedings in the Mental Health Review Tribunal must make an application to the Court under the Court Suppression Act, and must meet the threshold requirements set out in that Act.

44. That does not mean that s 162 is wholly irrelevant to consideration of non-publication or suppression issues relating to Tribunal proceedings in the Supreme Court or this Court. As was indicated in Misrachi of s 65 of the NCAT Act, s 162 can be seen as evincing a legislative sensitivity to publication or broadcasting of the identity of persons involved in such matters: see also State of New South Wales v BP (Preliminary) [2019] NSWSC 699 at [9]. That sensitivity can be relevant to assessing what is “otherwise necessary in the public interest” for the purposes of s 8(1)(e) of the Court Suppression Act. This view is consistent with what was said in Secretary v W at [6].

45. Adamson J said in Huckstadt (No 2) at [51] that “[i]f Parliament had intended to restrict the disclosure of information relating to forensic patients in proceedings in this Court generally, it would have done so expressly”. That point means that the issue has been left to the control of the courts. It does not mean that a parliamentary indication of legislative concern – one which is consistent with longstanding principle (see below at [48]-[49]) – is irrelevant to assessing what is in the public interest.

What orders, if any, should be made here?

46. There are four main options before me in relation to what orders to make on this review hearing.

1. Leave the Suppression Order in place without amendment, as originally proposed by the applicant.

2. Make orders as originally proposed by the Bar Association respondents, the effect of which was that the Suppression Order would be replaced by a non-publication order prohibiting the publication of information tending to reveal the identity of the applicant as a party to these proceedings. The proposed orders included detailed express carve-outs, for the avoidance of doubt, to enable the Bar Association to carry out its various regulatory functions.

3. Make the consent orders sought by the applicant and the Bar Association respondents, where the proposed operative order was as follows: “The court suppression order dated 1 December 2015, and all subsequent orders of variation, be lifted, effective from 20 February 2023”.

4. Make the consent orders but to continues to refer to the applicant as “Z” for the purposes of the court records and systems.

47. The matters outlined above at [14]-[20] persuade me that the Suppression Order should not remain in place without amendment. I thus reject option 1.

48. In other contexts I might readily accede to making consent orders removing a suppression order, especially one that has caused the litigious disputes that this one has. But the review here arises in a very particular context. As this Court stated recently in Burton v Director of Public Prosecutions [2022] NSWCA 242 at [52]:

The law has long recognised that cases concerning wardship of children, along with those concerning significant mental illness, are generally to be heard in private. In such cases “the Court is really sitting primarily to guard the interests of the ward or lunatic”, and the broad principle of open justice “yields to the paramount duty, which is the care of the ward or lunatic”: Scott v Scott [1913] AC 417 at 437 per Viscount Haldane LC; see further Russell v Russell (1976) 134 CLR 495 at 532-533; [1976] HCA 23, Hogan v Hinch [(2011) 243 CLR 506; [2011] HCA 4] at [21] and [88]. Implicit in that notion is recognition of the harm that might follow to the persons concerned if they were publicly identified as wards of the State or persons whose sanity was in question.

49. The solicitude of the law with regard to the effect of publicity on persons said to be suffering from mental illness does not detract from the need to consider the issue within the terms of the Court Suppression Act. That consideration must include the direction in s 6 that “[i]n 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”. Nevertheless, the general law can inform, in particular, what might be considered “otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice”, being one of the grounds on which an order may be made under the Act: s 8(1)(e). So much is reflected in what Basten JA stated in Z (No 1) at [4], as quoted above at [10].

50. Further, as discussed above, under s 162 of the Mental Health Act the power to lift the general prohibition on identifying a relevant person within relevant Tribunal proceedings is given to the Tribunal; it is not something the person in question can waive. No doubt any views of the person would be an important consideration in the Tribunal’s determination. Nevertheless, the section manifests a parliamentary judgment that the views of the person in question should not be determinative. That no doubt reflects the potential vulnerability of at least some of the people in question. Whilst this provision is not directly applicable here, it supports the view a court should be cautious in deciding whether to lift an order made protecting the identity of a person who has exercised an appeal right under that Act, even where the person concerned consents to that course.

The positions of the parties

51. In their written submissions, filed prior to the change of position by the applicant, the Bar Association respondents gave three types of reasons as to why the non-publication order that they proposed should be made. First, they referred to the issues with the Suppression Order identified by me in Z (No 2).

52. Secondly, they submitted that the Order had created significant difficulties in enabling them and others to engage with other litigious and complaint processes initiated by the applicant. These processes encompassed a complaint made to the Australian Human Rights Commission by the applicant about the Bar Council’s decision to refuse the applicant a practising certificate, along with four proceedings commenced in the Federal Court actually or contingently involving the Bar Association respondents (some of these proceedings were commenced against the Law Society of NSW).

53. As an example of the difficulties said to have been caused, the Bar Association respondents relied on evidence that in one of the Federal Court proceeding an interlocutory hearing had occurred involving argument as to whether or not the Bar Association respondents had breached the Suppression Order by filing evidence in that proceeding. That dispute had been resolved ultimately by consent orders being made by the Federal Court to remove a particular affidavit from the Court file, without prejudice to the ability of Bar Association parties to later seek to rely on that affidavit. The solicitor with carriage of this matter for the Bar Association respondents expressed the view in one of his affidavits that the applicant had attempted to use the Suppression Order “to limit the material that is able to be put before the [Federal Court] or the Commission, which material is central to the issues alleged by the applicant”.

51. Thirdly, the Bar Association respondents identified a need to provide relevant information to other Australian legal professional regulators, along with other bodies and individuals who have some role to play in connection with the Bar Association conducting the contempt litigation and more generally in carrying out its functions. The orders that it proposed included carve-outs to enable disclosure of the identity of the applicant to, for example, any professional indemnity insurer in connection with the claim or notification relating to these proceedings; any legal practitioner engaged to represent parties in connection with these matters; the Commissioner for the Uniform Legal Services Regulation and any delegate thereof; and any costs consultants or assessors (in circumstances where a partial cost order was made in favour of the Bar Association respondents against the applicant in Z (No 2)).

52. By the time of this hearing, so far as I understood the situation, all of the Federal Court proceedings had come to an end in one way or another, and the Australian Human Rights Commission had dismissed the complaint. However, part of the context outlined by the solicitor for the Bar Association respondents was that the Bar Council’s original decision to refuse a practising certificate had related in part to concerns about the number of proceedings brought by the applicant, referring to “11 separate proceedings across a number of jurisdictions”. Despite the discontinuance of the current proceedings, the Bar Association respondents suggested that it was entirely possible that there would be future proceedings against it of a similar kind. I accept that that is so.

53. The applicant filed three affidavits in response to the application of the Bar Association respondents. In the first, dated 30 August 2022, she expressed her opposition to being identified in the proceedings during her lifetime and that of any child that she may have on the basis of her safety. She stated that she found the possibility of being identified in connection with these proceedings as highly distressing. She stated that it has been her experience “that when people find out about my involuntary mental health treatment, I am treated with contempt”. She also stated that she had been a regular victim of crime and abuse.

54. In her second affidavit, dated 27 October 2022, she again expressed her opposition to the orders sought by the Bar Association respondents. She rejected the suggestion of the solicitor for those respondents that she had attempted to use the Suppression Order to limit the material put before the Federal Court or the Australian Human Rights Commission.

55. The applicant’s third affidavit was dated 15 February 2023 and responded to an affidavit of the solicitor for the Bar Association respondents made in December 2022. In that affidavit, she made some religious references, the relevance of which to the issues at hand was not apparent. She complained of the “falsehood emanating from the NSW Bar and its legal representatives as well as the Victorian Bar Incorporated and the Law Society of the Northern Territory”. She also referred to, amongst other things, the announcement of the Australian Government that it was proposing to move to abolish the Administrative Appeals Tribunal (AAT). This affidavit did not state in terms that she continued to support the Suppression Order, but that position seemed implicit in what was said.

56. In submissions dated 16 February 2023, the day after the making of the applicant’s third affidavit, the applicant filed brief written submissions in which she indicated that the recusal application against me was no longer pursued and she sought that the Suppression Order “be completely lifted”. On 20 February 2023 the applicant sent proposed consent orders to my associate to achieve this result.

57. The Attorney-General tendered an order of the Mental Health Review Tribunal indicating that the tribunal had considered an application from the applicant to permit publication or broadcast of information relating to her. The order indicated that the Tribunal had determined to grant consent, implicitly pursuant to s 162 of the Mental Health Act, for the applicant’s name to be published in relation to the Tribunal proceedings which had been the subject of the appeal to the Supreme Court and then to this court in 2015. The application to the Tribunal for that order had been facilitated by the legal representatives of the Attorney-General at the request of the applicant.

58. In the course of the hearing, on 23 February 2023, I asked the applicant various questions seeking that she elucidate her change of position, which appeared to have occurred overnight between 15 and 16 February 2023. No such reasons had been provided in her written submissions or in any affidavit material. In response, in summary, she said as follows:

1. She considered that the Suppression Order had been undermined in practice and was not providing her protection. She referred to the fact, for example, that the legal regulator in the Northern Territory had found out about the fact that she was “Z”. I note, in this regard, that one of the variations made by consent to the Suppression Order was to the effect that the Bar Association may provide to other legal regulators within Australia a copy of the Bar Council’s reasons for rejecting her application for a practising certificate (as discussed in Z (No 2) – see above at [20]). She also suggested that the public nature of the Federal Court proceedings had effectively undermined the protective effect of the Suppression Order.

2. I raised an issue as to whether the applicant had concerns about persons other than legal regulators and the like finding out that she was the applicant in these proceedings. She indicated that she did still have some such concerns, but it appeared to me that she regarded this as of a lesser order than her concern about legal regulators and the like finding out that she was the applicant in these proceedings, where she seemed to regard that as a lost cause.

3. The applicant referred to the abolition of the AAT, indicating that this had made it harder for her to obtain admission or a practising certificate elsewhere in Australia based upon the mutual recognition laws.

4. She stated that she “would like to remove myself from this entanglement” and that there was “nothing of benefit to me coming out of these proceedings”. When I sought to clarify these points, she indicated that she currently proposed to continue pursuing her contempt allegations, but she could see little benefit coming out of issues relating to the Suppression Order.

5. The applicant stated that “[w]hat has come out through the Federal Court and through me seeking recognition through every State and Territory in Australia is that there is now a skewed and warped weight of information”. She said “it would be in the public interest for the suppression order, which is supporting the skewing and distortion of the information, to be lifted so that it is publicly clear”. I asked her if she was indicating that she considered it to be in her interests positively to identify herself as the applicant in these proceedings, so as to remedy any information asymmetry, and taking account of the fact that her appeal succeeded in this Court. She did not agree with that characterisation of her position, expressing some criticisms of the dissenting judgment of Bergin CJ in Eq in Z (No 1). Despite her disavowal of that characterisation, she did still seem to be saying that she saw positive benefits in the lifting of the Order.

62. Following these submissions, senior counsel appearing for the Bar Association respondents indicated that it was a matter for the Court what orders to make, but to the extent the consent of those respondents was needed, it was provided. When asked if there were any possible intermediate orders, being ones less restrictive than the current proposal of the Bar Association respondents, senior counsel accepted that one possibility would be to continue designating the applicant as “Z” for the purposes of this proceeding without thereby making any order under the Court Suppression Act restricting any person from identifying who the applicant was. She suggested that would be consistent with practice in the Federal Court as regards identifying asylum-seekers.

63. The applicant said was not in favour of the latter proposal.

64. The Attorney-General continued to maintain a neutral stance in relation to the orders.

Resolution

65. The main issue for determination is whether or not orders along the lines originally proposed by the Bar Association respondents should be made or, rather, the Suppression Order and subsequent variations thereof should be lifted. I have come to the view that the Order should be lifted.

66. First, as noted above it appears that the making of the Suppression Order was jointly requested by the applicant and the Attorney-General, being the active parties in the proceedings at the time of the 2015 appeal. The applicant no longer supports the order being in place, and the Attorney-General has adopted a neutral position. Whilst that factor is not definitive, it is still entitled to some weight.

67. Secondly, and overlapping with the first point, it is relevant that the applicant no longer perceives there to be benefits or a public interest in maintaining the Suppression Order. Although the first affidavit of the applicant in particular did refer to a concern about safety, I am not persuaded that lifting the Suppression Order would cause any significant risk of physical harm to the applicant. As the Attorney-General submitted, the evidence more raised an issue about potential harm from psychological distress. The applicant no longer supports the Order on this ground. Her own assessment of this issue is entitled to some weight. I alluded above to a possible concern about the apparent rapidity of the change in mind of the applicant. However, she had a further week to consider her position between her change of mind and the hearing, and it is apparent that nothing had caused her to doubt her new position in that time.

68. Thirdly, it is not necessary for me to determine whether it is correct, as suggested by the solicitor for the Bar Association respondents, that the applicant has attempted to use the Suppression Order to limit the material that is put before other relevant courts and decision-makers. What is apparent from the evidence is that the Suppression Order has caused some difficulties in those other processes. Whilst those processes seem to be at an end, there is a real possibility that there may be further such processes. The very detailed orders proposed originally by the Bar Association respondents might reduce the potential for such difficulties being caused in the future. On the other hand, given the history of disputes and given the very detailed nature of those orders, there would be a real risk of further disputation as to the meaning and effect of any such alternative orders.

69. Fourthly, in circumstances where I am not persuaded the order is necessary to protect the safety of the applicant, the key consideration becomes whether the ground in s 8(1)(e) of the Court Suppression Act is made out. That depends on whether I am satisfied that “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”. As identified by Basten JA in Z (No 1), there are public interests to be served by maintaining protection of the identity of the applicant. However, in all of the circumstances outlined, I am not persuaded on the material now before me that any such public interest significantly outweighs the competing public interest in open justice.

70. I thus consider that the preferable course is to lift the Suppression Order rather than to make the orders originally proposed by the Bar Association respondents.

71. I note that, with no disrespect intended, I place no weight on the fact that the Tribunal has consented to the identity of the applicant being disclosed. As discussed above, such consent is not necessary. In some circumstances such an order might still be material. Here, however, the order seems to have been based only on the provision of a brief letter from the Crown Solicitor’s Office to the Tribunal seeking the order on behalf of the applicant. The Tribunal was not provided with any information as to the current circumstances of the applicant, nor has the Tribunal made its own assessment of those circumstances. The position of the Tribunal thus rises no higher than the position presented to me by the parties.

72. It is then necessary to consider whether or not to maintain the designation of the applicant as “Z” for the purpose of the records and systems of the Court. When the matter was filed in the Supreme Court a direction was made by a registrar that the applicant’s name “be suppressed to CLP”. That order was not made in terms indicating it was made under the Court Suppression Act. It rather appears to have been made as a matter of court procedure relating to how the applicant was to be identified. When the matter was appealed to this Court, a notation was made by the Registrar of this Court, after a directions hearing on 19 October 2015, that the applicant was referred to as “Z”. Again, this was not an order made under the Court Suppression Act. The two earlier judgments in this matter in this court have been published in terms designating the applicant accordingly.

73. Pseudonym orders can be made under the Court Suppression Act. Indeed, the Act would in general be the appropriate source of power where the orders are meant to prohibit the publication or disclosure of the name or identity of the person concerned (it is not necessary to consider here other possible sources of power to make such orders – cf s 4). Such orders would then be made within the regime created by that Act.

74. The sort of designation adopted by the registrars in this matter imposed no restriction on anyone other than those administering the systems of this court. The orders were not made in terms consistent with the requirements of the Act. Those orders are best understood as having been made as a matter of court administration.

75. Although the applicant no longer supports this designation being employed, in my view it is appropriate that it continues. To do so preserves the status quo in terms of how previous judgments of this court have been identified. It also, in a small way, does something to preserve a degree of anonymity of the applicant without intruding in any significant way upon open justice. In order to crystallise this point clearly, I will make an order directing that in the records and systems of this court the applicant be referred to as “Z”. That order does not prevent any person identifying or publicising who “Z” is. Nor will it restrict the Court from identifying the applicant in any subsequent reasons for judgment.

76. As regards costs, the Attorney-General did not seek his costs, and the Bar Association respondents agreed not to seek costs as part of the consent order proposal. Each party should bear their own costs with respect to the issues addressed in this judgment.

77. Finally, in Z (No 2) at [220]-[222] I raised the possibility of either the applicant or the Bar Association respondents seeking some order under the Court Suppression Act in the 2019 Supreme Court proceedings between those parties, taking account of the fact that what occurred in those proceedings lay at the heart of the allegations of contempt made by the applicant against the Bar Association respondents. Those respondents did file a notice of motion seeking that orders be made similar to those that were proposed in this proceeding. That motion was listed for hearing before me simultaneously with the matters dealt with in this judgment. Following the agreement as to consent orders reached in this matter, further consent orders were proposed that the motion brought by the Bar Association respondents in that proceeding be dismissed with each party to bear their own costs. That proposal was conditional upon the Suppression Order being lifted in this matter. As that will now occur, I will also make orders in the 2019 proceedings in line with the parties’ proposal.

Orders

78. The orders of the Court in this matter will be as follows:

1. Order 4 made in these proceedings on 1 December 2015 and all subsequent variations of that order are revoked.

2. Direct that in the records and systems of this Court the applicant continues to be referred to as “Z” (noting that this does not restrict the content of any reasons for judgment).

3. The parties to the hearing on 23 February 2023 are to bear their own costs in relation to the hearing.

4. List the matter for directions before the Registrar of the Court of Appeal on Wednesday 15 March 2023 or such other date as is fixed by the Registrar.

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Decision last updated: 08 March 2023