Council of the Law Society of New South Wales v XX (No 4) [2021] NSWSC 192

Supreme Court New South Wales

Medium Neutral Citation: Council of the Law Society of New South Wales v XX (No 4) [2021] NSWSC 192 Hearing dates: 24 February 2021 Date of orders: 26 March 2021 Decision date: 08 March 2021 Jurisdiction: Common Law Before: Davies J Decision: 1. Pursuant to s 7(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) (Suppression Act), on the basis of the ground in s 8(1)(c) of the Suppression Act, the publication of information tending to reveal the identity of the Defendant in a manner which identifies the Defendant as the person who is alleged to have engaged in the conduct, the subject of these proceedings, is prohibited. 2. The defendant be referred to by the pseudonym (XX) in the Court, including but not limited to in the following judgments and orders: a. orders dated 11 June 2019; b. orders dated 14 June 2019; c. the judgment of Lonergan J dated 11 July 2019: [2019] NSWSC 874; d. orders dated 20 August 2019; e. the judgment of Bellew J dated 20 August 2019: [2019] NSWSC 1079; f. the judgment of Bellew J dated 21 November 2019: [2019] NSWSC 1630; g. orders dated 12 December 2019 made by Bellew J; and h. any order and/or judgment made in this proceeding. 3. The Defendant's family members, where referred to as such, location, and name of the Defendant's former practices be referred to by a pseudonym in the above judgments. 4. Pursuant to s 11 of the Suppression Act, Orders 1 to 3 apply throughout the Commonwealth. 5. Orders 1 to 4 inclusive apply until the expiration of 18 months after the defendant's release to parole from his current custodial sentence in District Court proceedings 2019/00048381 and 2019/00363260. Exceptions to orders 1, 2 and 3 6. Orders 1 to 3 inclusive do not prevent the publication (or, for the avoidance of doubt, the disclosure) of any information to any Court or Tribunal. 7. Orders 1 to 3 inclusive do not prevent any Court or Tribunal from making an order that information, whether or not it tends to reveal the identity of the Defendant, may be published (or, for the avoidance of doubt, disclosed). 8. Orders 1 to 3 inclusive do not prevent the publication (or, for the avoidance of doubt, the disclosure) of information to the New South Wales Police, or to the Australian Federal Police. 9. Orders 1 to 3 inclusive do not prevent the publication (or, for the avoidance of doubt, the disclosure) of information for any one or more of the following purposes: a. carrying out, enforcing or overseeing Orders 3 to 8 inclusive of the orders made by the Court in these proceedings on 20 August 2019; b. investigating, handling and/or otherwise dealing with matters, allegations, claims or complaints involving the Defendant or any law practice, legal practitioner or former legal practitioner with which he has been associated, including but not limited to claims on the Fidelity Fund; c. seeking legal advice in relation to the Defendant and/or matters, allegations, claims or complaints against or involving the Defendant or any law practice, legal practitioner or former legal practitioner with which he has been associated, including but not limited to claims on the Fidelity Fund; d. instituting and/or carrying on legal proceedings against or involving the Defendant in any Court or Tribunal; e. the exercise of the receiver's functions in relation to the law practice known as XXX Pty Ltd (trading as YY) and/or the law practice known as ZZZ Pty Ltd (trading as ZZ), whether by the receiver (whether present or his successor), or by any delegate, associate, employee or legal representative of the receiver; and/or f. the exercise of the manager's functions in relation to YY and/or ZZ, whether by the manager (whether present or his successor), or by any delegate, associate, employee or legal representative of the manager. 10. Orders 1 to 3 inclusive do not prohibit the publication (or, for the avoidance of doubt, the disclosure) of: a. information about the suspension, or status, of the Defendant's practising certificate; b. information concerning claims which may be made against the Fidelity Fund in relation to the Defendant, YY or ZZ, or any other law practice with which the Defendant has been associated including but not limited to information inviting any person who considers they have a claim to make one; and/or c. information concerning the receivership and/or management of YY and/or ZZ, including but not limited to information concerning the appointment of any receiver and/or manager to YY and/or ZZ, whether such publication or disclosure is, or has been, made before or after the making of these orders. 11. Orders 1 to 3 inclusive do not prohibit the publication (or, for the avoidance of doubt, the disclosure) of any information: a. to any client, former client or purported client of the Defendant, YY, ZZ or any other law practice, legal practitioner or former legal practitioner with which the Defendant has been associated or has purportedly been associated for the purposes of providing such client, former client or purported client with information reasonably necessary to permit them to take steps to protect their rights and/or interests; or b. by any such client, former client or purported client for the purposes of taking such steps as are reasonably necessary to protect their rights and/or interests, including but not limited to seeking legal or other professional advice and/or commencing proceedings (whether against the Defendant or not), or to assist with any investigation or proceeding concerning the Defendant, whether such publication or disclosure is, or has been, made before or after the making of these orders. 12. Except as otherwise specified in these orders, Orders 1 to 3 inclusive do not apply to publications which came into existence prior to the date of the orders made by Bellew J on 12 December 2019. 13. By consent, the parties agree that Orders 1 to 3 inclusive do not prevent the redacted or pseudonymised judgments and orders in the proceeding from being published or disclosed. Costs 14. In relation to the Defendant's notice of motion dated 16 December 2020, each party to bear its own costs. Other orders 15. The order made by Bellew J on 21 November 2019 that the reasons for judgment (Council of the Law Society of NSW v XX (No 3) [2019] NSWSC 1630) be supressed is vacated. Catchwords: CIVIL PROCEDURE – suppression and non-publication – orders – earlier orders made and due to expire - further orders sought on the basis of defendant's psychiatric illness – s 8(1)(c) Court Suppression and Non-publication Orders Act - solicitor who defrauded clients of money – where solicitor was convicted of five counts contrary to s 192E Crimes Act 1900 (NSW) and imprisoned – where media articles published without naming solicitor because of earlier orders – where solicitor suffers from Bipolar I Disorder – where risk of self-harm - where orders are necessary to protect defendant's safety – length of orders – whether orders are reasonably necessary to operate until the end of defendant's sentence – where media interest in case following defendant's release from custody likely to be minimal – orders made until 18 months following defendant's release from custody on parole Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW) ss 6, 7, 8, 12 Crimes Act 1900 (NSW) s 192E Legal Profession Uniform Law (NSW) No 16a of 2014 ss 341, 447 Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: AB (A Pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46 Council of the Law Society of NSW (No 2) [2019] NSWSC 1079 Council of the Law Society of New South Wales v Cassidy [2018] NSWSC 2008 Council of the Law Society of New South Wales v XX [2019] NSWSC 874 Council of the Law Society of NSW v XX [2020] NSWSC 1912 Council of the Law Society of NSW v XX (No 3) [2019] NSWSC 1630 Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 R v XX [2020] NSWDC 771 Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 Texts Cited: Nil Category: Procedural rulings Parties: Council of the Law Society of New South Wales (Plaintiff) XX (Defendant) Representation: Counsel: C Hamilton-Jewell (Plaintiff) P Lange & T Woods (Defendant)