XY v The Council of the Law Society of New South Wales (No 2) [2021] NSWSC 1353

Supreme Court New South Wales

Medium Neutral Citation: XY v The Council of the Law Society of New South Wales (No 2) [2021] NSWSC 1353 Hearing dates: 21 October 2021 Decision date: 22 October 2021 Jurisdiction: Common Law Before: Adamson J Decision: (1) Set aside the non-publication order made by Wilson J on 20 August 2021 and, in lieu thereof, make the following orders. (2) Subject to order (3) below, pursuant to s 7(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (the Act), prohibit the publication of information tending to reveal the identity of the plaintiff in a manner which identifies the plaintiff as the person who is alleged to have engaged in the conduct the subject of this proceeding. (3) The prohibition in order (2) applies: (a) to all media, including but not limited to print, radio, television, internet and social media; and (b) throughout the Commonwealth. (4) The following pseudonyms will apply in any order or judgment made in this proceeding: (a) the plaintiff will be referred to by the pseudonym "XY"; (b) the law practice of which the plaintiff was, prior to the cancellation of her practising certificate, principal will be referred to as "the plaintiff's law practice"; and (c) the solicitor employed by the plaintiff's law practice who has been identified in the evidence adduced at the hearing on 30 September 2021 as a potential principal of the plaintiff's law practice will be referred to as "Mr A". (5) Orders (2) to (4) inclusive are to apply until 1 November 2022 or until further order, whichever is the sooner. (6) Note that orders (2) to (5) are made on the ground specified in s 8(1)(c) of the Act: namely, that they are necessary to protect the safety of any person (in this case, the plaintiff). Exceptions to orders (2), (3), (4) and (5) (7) Orders (2) to (5) do not prevent the disclosure of any information to: (a) a Court or Tribunal; or (b) the New South Wales Police or to the Australian Federal Police. (8) Orders (2) to (5) do not prevent the disclosure of any information by the New South Wales Police or the Australian Federal Police in connection with investigating, handling or otherwise dealing with issues, matters, allegations, claims or complaints involving the plaintiff or the plaintiff's law practice. (9) Orders (2) to (5) do not prevent the disclosure of any information by or to the defendant or the Law Society of New South Wales (together, the Law Society), the New South Wales Legal Services Commissioner or his office (together, the OLSC) or the New South Wales Bar Association or its Council (together, the Bar Association) in connection with any of the following purposes: (a) investigating, handling or otherwise dealing with issues, matters, allegations, claims or complaints involving the plaintiff or the plaintiff's law practice; (b) seeking or providing legal advice in relation to the plaintiff or the plaintiff's law practice or issues, matters, allegations, claims or complaints involving the plaintiff or the plaintiff's law practice; or (c) instituting or carrying on legal proceedings involving the plaintiff or the plaintiff's law practice in any Court or Tribunal. (10) Orders (2) to (5) do not prevent the disclosure of any information within or between the Law Society, the OLSC and the Bar Association. (11) Orders (2) to (5) do not prohibit the disclosure, including on the OLSC's Register of Disciplinary Action, of any information by the Law Society or the OLSC about: (a) the status (including, for the avoidance of doubt, the suspension) of the plaintiff's practising certificate; (b) the status of the plaintiff's law practice; or (c) the exercise of the manager's or any receiver's functions in relation to the plaintiff or the plaintiff's law practice, whether by the manager (whether present or his successor) or receiver, or by any delegate, associate, employee or legal representative of the manager or receiver. (12) Orders (2) to (5) do not prohibit the disclosure of any information by the Law Society or the OLSC: (a) to any client, former client or purported client of the plaintiff or the plaintiff's law practice 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 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 or interests, including but not limited to seeking legal or other professional advice or commencing proceedings (whether against the plaintiff or the plaintiff's law practice), or to assist with any investigation or proceeding concerning the plaintiff or the plaintiff's law practice. (13) Orders (7) to (12), which are made for the avoidance of doubt, apply to any publication or disclosure of information that is, or has been, made before or after the making of these orders. Catchwords: CIVIL PROCEDURE — Suppression and non-publication orders — Review of existing orders which did not comply with s 8(2) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) — Importance of principles of open justice - Orders necessary to protect the safety of any person — New orders made designed to infringe impact on principles of open justice to the minimum extent necessary to protect the plaintiff's safety Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 6, 7, 8, 11, 13 Cases Cited: Council of the Law Society of New South Wales v XX (No 4) [2021] NSWSC 192 XY v The Council of the Law Society of New South Wales [2021] NSWSC 1263 Texts Cited: Diagnostic and Statistical Manual for Mental Disorders Version 5 Category: Procedural rulings Parties: XY (Plaintiff) The Council of the Law Society of New South Wales (Defendant) Representation: Counsel: M Windsor SC (Plaintiff) C Webster SC (Defendant)