ZZ v Newscorp Australia (Daily Telegraph Newspaper

[2024] NSWSC 120

Supreme Court

New South Wales

Medium Neutral Citation:

ZZ v Newscorp Australia (Daily Telegraph Newspaper [2024] NSWSC 120

Hearing dates:

16 February 2024

Date of orders:

16 February 2024

Decision date:

16 February 2024

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Plaintiff’s application for pro bono assistance granted. Assistance to be confined to merits of case he wishes to bring and to re-draft the statement of claim.

2. Referral to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance.

3. Leave to defendant to access plaintiff’s affidavit sworn 13 February 2024.

4. Liberty to apply on 2 days’ notice to duty judge.

Catchwords:

CIVIL PROCEDURE – parties – impecunious and incarcerated plaintiff – application for pro bono assistance – inability to obtain legal assistance – claims in respect to publication of plaintiff’s identity contrary to court orders – referred for pro bono assistance

Legislation Cited:

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

Felons (Civil Proceedings) Act 1981 (NSW) s 4

Legal Profession Uniform Law Application Act 2014 (NSW) Sch 2

Uniform Civil Procedure Rules 2005 (NSW) r 7.36

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

ZZ (Plaintiff)
Newscorp Australia (Daily Telegraph Newspaper (First Defendant)
Joanna Panagopoulos (Second Defendant)

Representation:

Counsel:
ZZ (in person via AVL) (Plaintiff)
G McAvaney (Defendants)

Solicitors:
Self-represented (Plaintiff)
G McAvaney (Defendants)

File Number(s):

2023/460110

Publication restriction:

Nil

Judgment

1. The plaintiff, who as a result of orders I made on 12 February 2024 is now to be known as "ZZ", commenced proceedings by Statement of Claim on 18 December 2023 against Newscorp Australia and a journalist said to be employed by Newscorp Australia. As I understand it, there is a difficulty at the moment about the name of the first defendant, but in due course that can be rectified if the matter proceeds.

2. The plaintiff is a prisoner currently held at Goulburn Correctional Centre.

3. He has been convicted in the past of a number of offences and both his Statement of Claim and other evidence that I have received make clear that from time to time orders have been made by courts that he has come before pursuant to the Court Suppression and Non-Publication Orders Act 2010 (NSW) that he not be identified because of assistance that he has provided in various matters.

4. The plaintiff's claim in his Statement of Claim asserts that, despite the orders that have been made, that the defendants published an article on 19 January 2021 which identified him by name, leading to his being exposed to, and suffering, physical assaults. The Statement of Claim appears to claim damages in respect of the publication which is said to be in contempt of court and also impliedly seeks a take-down order for the article that was published.

5. At the present time, and at the time the plaintiff filed his Statement of Claim, he was acting for himself because he had been unable to obtain legal assistance to bring the proceedings.

6. He now seeks that the Court refer him to the Registrar of the Court for referral to a barrister or solicitor on the Pro Bono Panel pursuant to r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW).

7. Sub-rule (2) provides that the Court in deciding whether to make a referral may take into account the means of the litigant, the capacity of the litigant to obtain legal assistance, the nature and complexity of the proceedings and any other matter that the Court considers appropriate.

8. The plaintiff in his affidavit says that he has no financial assets or money in any bank accounts, and at the hearing this morning he has confirmed that that is so, and that he is not in receipt of any moneys by way of Government assistance.

9. His affidavit discloses that he applied to Legal Aid in May 2023 last year for assistance to bring his proceedings, but Legal Aid said that the matter fell outside its policies and guidelines.

10. The plaintiff says that he has also approached the Law Society Pro Bono Scheme but has not heard back from them.

11. I am satisfied that the plaintiff does not have the means to engage his own lawyer in the matter not only because of his financial situation but because he is a person incarcerated. I am satisfied that his attempts so far to obtain legal assistance have proved fruitless.

12. In terms of the complexity of the proceedings, it appears to me that the claim the plaintiff seeks to bring is not an entirely straightforward one. On one level he appears to be seeking an order that the defendants are in contempt of court. Otherwise, he appears to seek damages for what he says is their breach of orders of the Court, and for defamation by the publication of the article.

13. An issue to be determined is whether the article was published in contravention of any of the Court orders made, the suggestion from the defendants’ written submissions being that the article was unrelated to a reporting of the cases where non-publication orders had been made.

14. I am satisfied, therefore, that the issues in the case would be greatly assisted by the plaintiff having legal advice.

15. In the first place I consider that the pro bono assistance should be confined to the plaintiff receiving advice about the merits of the case he seeks to bring and if the legal advisor considers that he has a case which may be legitimately brought, particularly having regard to what is contained in Sch 2 to the Legal Profession Uniform Law Application Act2014 (NSW). If the legal advisor considers that there is such a case, the pro bono assistance should extend to a redrafting of the plaintiff's Statement of Claim to make clear, using proper pleading, the causes of action that the plaintiff brings against the defendants.

16. If the matter reaches that stage, the Court would be prepared to entertain a further application from the plaintiff for pro bono assistance for a lawyer to continue to act for him to further the proceedings to a hearing.

17. The plaintiff has also applied under s 4 of the Felons (Civil Proceedings) Act1981 (NSW) for leave nunc pro tunc to bring these proceedings because he is incarcerated, having committed a serious indictable offence.

18. It is not appropriate to consider that application at the present time. Until a legal advisor can provide advice that the plaintiff has a reasonable cause of action, an application under the Felons Act would be doomed to failure.

19. Accordingly, I make an order referring the plaintiff to the Registrar of the Court for referral to a barrister or solicitor on the pro bono panel for legal assistance.

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Decision last updated: 16 February 2024