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) Solicitors: Bartier Perry Lawyers (Plaintiff) The Law Society of New South Wales (Defendant) File Number(s): 2021/207126 Judgment Introduction 1. I arranged for this matter to be re-listed before me on 21 October 2021, for the purpose of considering whether the orders made on 20 August 2021 by Wilson J pursuant to the Court Suppression and Non-Publication Orders Act 2010 (NSW) (the Act), with the consent of the parties, ought be varied or set aside. My concern in so doing was to ensure that regard was had to s 6 of the Act, which provides that in deciding whether to make an order under the Act the court is obliged to take into account that "a primary objective of the administration of justice is to safeguard the public interest in open justice." 2. These reasons should be read together with my judgment on the plaintiff's application for a stay which was published on 6 October 2021: XY v The Council of the Law Society of New South Wales [2021] NSWSC 1263 (the stay decision). 3. All references to legislation in these reasons are to be read as references to the Act, unless otherwise stated. The background to the review 1. The plaintiff was charged with fraud-related offences which are to be dealt with summarily in the Local Court. The criminal proceedings have been listed for hearing in August 2022. The conduct underlying the charges, together with further conduct relating to invoices provided to a litigation funder, was the subject of an investigation by the Council of the Law Society of New South Wales (the defendant) and led to the suspension of the plaintiff's practising certificate. The plaintiff commenced these proceedings for review of the suspension. By notice of motion she sought a stay, which, by the stay decision, was refused. 2. On 9 February 2021, Covington LCM made a non-publication order (NPO) under the Act in the following terms: "The publication of any information: (a) tending to reveal the identity of [the plaintiff] in connection with the proceedings or in connection with the evidence given in the proceedings or in connection with information about evidence given in the proceedings; and (b) that comprises evidence, or information about evidence, given in proceedings before the court is PROHIBITED. The Order shall apply: a) to all media including but not limited to print, radio, television, internet & social media b) anywhere in the Commonwealth UNTIL the determination of the criminal proceedings in the District Court, or if the matter proceeds in the Local Court, the determination of the matter in the Local Court. The Order applies to the Commonwealth of Australia as the Court is satisfied that having the order apply outside New South Wales is necessary for achieving the purpose for which the order is made." 1. On 20 August 2021, Wilson J made a NPO under the Act in the following terms: "The publication of any information: a. tending to reveal the identity of [the plaintiff] in connection with the proceedings or in connection with the evidence given in the proceedings or in connection with information about evidence given in the proceedings; and b. that comprises evidence, or information about evidence, given in the proceedings before the court, is prohibited. This Order shall apply: a. to all media including but not limited to print, radio, television, internet and social media; and b. anywhere in the Commonwealth, until the determination of both these proceedings and the Local Court criminal proceedings 2021/00003239." 1. Neither of these NPOs complied with s 8(2) of the Act which requires the paragraph of s 8(1) of the Act pursuant to which the order was made, to be specified. 2. On 6 October 2021, I published the stay decision. As an NPO does not bind the Court, the publication of the judgment did not breach the NPO. The plaintiff communicated with the Court with a view to having the judgment taken down. Ultimately, I arranged for the judgment to be taken down from CaseLaw, pending determination of the application for review, which, as referred to above, was made on the Court's initiative. 3. Mr Windsor SC, who appeared for the plaintiff, informed me that both NPOs were made pursuant to s 8(1)(c) of the Act: namely, that the NPO was necessary to protect the safety of any person. The person whose safety it is necessary to protect is said to be the plaintiff. Mr Windsor relied on a report of Dr Sathish Dayalan, forensic psychiatrist, dated 3 February 2021, which was provided to Covington LCM and Wilson J and which, apparently, provided the basis for the respective NPOs made (although this was not expressed in either order). 4. In this report, Dr Dayalan, who assessed the plaintiff on 30 January 2021, opined that the plaintiff met the diagnostic criteria set out in the Diagnostic and Statistical Manual for Mental Disorders Version 5 for adjustment disorder with mixed anxiety and depressed mood. He opined: "In considering the various risk factors associated with suicide, [the plaintiff] would be regarded as high risk of suicide it the proceedings were published as this would negate the benefits of the one protective factor against suicide namely her commitment to her employment and the law firm." 1. It is important to note that the plaintiff accepts that, if she were convicted of the offences charged in the Local Court, it would be necessary to review the NPO again (since, presumably on that basis, the consequences to her mental health would not be confined to the extent of any publicity but would extend to the underlying convictions). Consideration 1. I reject Mr Windsor's argument that I ought not vary the NPO made by Wilson J because, to do so, would "create a tension" between an order of this Court and an order of the Local Court. This Court is obliged to comply with the Act. It is not bound by another court's assessment of the extent to which it is necessary to infringe the principles of open justice for any one of the purposes listed in s 8(1) of the Act. Further, I note that s 13(2) of the Act provides that certain categories of person have standing to seek a review of a NPO. Thus, although the defendant is not a party to the criminal proceedings in the Local Court, it would, prima facie, have standing to apply for a review of the NPO made in the Local Court, by reason of s 13(2)(e). 2. The NPO made by Wilson J in accordance with consent orders provided to her Honour by the parties prohibits publication by "all media including but not limited to print, radio, television, internet and social media". It is important to note that the NPO does not prohibit person-to-person disclosures or publications. Rather, it is designed to apply to, and prohibit, mass publication, such as occurs through media. I am not satisfied that the NPO made by Wilson J is necessary to protect the plaintiff's safety. While I accept that the limitation to "media" is appropriate, I am not persuaded that the breadth of the NPO is otherwise warranted, having regard to the importance of the principle of open justice. 3. I note that the psychiatric assessment of the plaintiff occurred almost nine months ago. Mr Windsor indicated that the plaintiff has another appointment in November 2021. However, on the basis of Dr Dayalan's report I am prepared to accept that the mental distress and psychiatric condition of the plaintiff is likely to continue until at least the hearing of the criminal proceedings in August 2022. For that reason, I do not propose to require the plaintiff to provide further updated evidence of her psychiatric condition. 4. I accept that the plaintiff's mental health may be jeopardised if the judgment and the proceedings are published through the media. On this basis, I am satisfied that it is necessary to make an order under the Act pursuant to s 8(1)(c) to protect her safety. I reject Mr Windsor's argument that it is relevant to consider the damage to the plaintiff's reputation if she is acquitted. First, damage to reputation is irrelevant, except to the extent that it bears on any of the grounds in s 8(1). Secondly, even if the plaintiff is acquitted of the charges, it does not follow that the proceedings in this Court lack utility. There is a significantly higher standard of proof in criminal proceedings. Further, these proceedings also cover matters which go beyond the matters in issue in the criminal proceedings. 5. What would appear to be required to protect the plaintiff's safety (in terms of her psychiatric health), is to anonymise her name and the name of her firm in the judgment and in reports of the proceedings in this Court and to prohibit disclosure of her name, or her identity, in the media. That way, the public interest in open justice is affected only to the extent required to protect the safety of the plaintiff. I am not persuaded that it is necessary in the conduct of the proceedings in this Court to refer to the plaintiff by a pseudonym but rather that in the judgments and orders of this Court she be referred to by a pseudonym. 6. Mr Windsor submitted that, if I considered a pseudonym order would be sufficient to protect the plaintiff, I should also make a pseudonym order in respect of Ms Rafraf (the alleged victim of the conduct which is the subject of the criminal proceedings); the employee of the plaintiff's firm who is proposed to take over as principal; Mr Flynn, the manager appointed by the defendant to manage the plaintiff's practice; the plaintiff's firm itself; and LegalPay, the litigation funder from whom the plaintiff obtained funds. I accept that the plaintiff's name; the name of the employed solicitor whom it is proposed will become the principal of the plaintiff's firm; and the plaintiff's firm need to be anonymised to protect the plaintiff's identity from disclosure. I do not accept that Ms Rafraf, Mr Flynn or LegalPay need be anonymised since publication of their names does not lead to identification of the plaintiff by association. 7. The defendant submitted that, if I were to vary the NPO, I ought formulate the NPO in accordance with the orders and exceptions made by Davies J in Council of the Law Society of New South Wales v XX (No 4) [2021] NSWSC 192. Ms Webster SC, who appeared on behalf of the defendant, contended that the exceptions were required to ensure that the defendant, the Office of the Legal Services Commissioner (OLSC), the NSW Bar Association and the New South Wales Police or the Australian Federal Police were not hindered in performing their functions. I note that the application of the orders made by Davies J in Council of the Law Society of New South Wales v XX (No 4) was not limited to "media". However, I consider that limitation to be apposite in the present case. I am not satisfied that it is necessary to impose a greater limitation than in the original order to protect the plaintiff's safety. Further, Mr Windsor submitted that the orders made by Wilson J were appropriate and they did not apply beyond the media. I understand from this concession that it is wider publicity through "media" which might cause her to be suicidal, not person-to-person communication. 8. Mr Windsor submitted that the exceptions to the NPO in the draft provided by the defendant were too broad and ought be narrowed. He submitted that the exception relating to the disclosure by the New South Wales Police or the Australian Federal Police should be confined to the investigation of "allegations". Further, he contended that the exception with respect to the defendant, the OLSC and the NSW Bar Association should be confined to "complaints". He also submitted that there was no need for the NSW Bar Association to be included in the exceptions as the plaintiff had only practised as a solicitor and it was purely speculative to imagine that she would ever apply to the NSW Bar Association for a practising certificate as a barrister. He also argued that there ought be no exception entitling the defendant or the OLSC to disclose the plaintiff's identity to "any client, former client or purported client" of the plaintiff's practice, since the investigation of the plaintiff's conduct ought be reactive rather than designed to encourage fresh complaints. 9. Although I am satisfied that, because of the plaintiff's suicidal tendencies and the diagnosis referred to above, it is necessary, in judgments or orders of this Court, to anonymise the plaintiff's name and the names of her practice and employed solicitor, it is fundamental that the NPO not interfere with communication by public or statutory bodies who may be required, in the proper exercise of their statutory functions, to disclose the plaintiff's identify to each other, or to third parties. It is difficult to see how such communication could be affected by the NPO which applies only to "media". However, I accept Ms Webster's submission that it is important to make it absolutely clear that certain communications are not within the limited prohibition. 10. It would, in my view, be sufficient to achieve this purpose, to frame an order to make it clear that the NPO does not prevent the publication or disclosure by certain nominated entities (in this case, the defendant, the NSW Bar Association, the OLSC, the NSW Police and the Australian Federal Police) in the course of the proper exercise of their powers or functions. However, as I have heard submissions on the more detailed orders made by Davies J in Council of the Law Society of New South Wales v XX (No 4), I propose to use them as a basis for the orders which I will make. My making of these orders ought not be understood as implying that a simpler version would not have achieved the same end. 11. The effect of the pseudonym orders is that the stay decision will be republished on CaseLaw, with pseudonyms used in place of the plaintiff's name, the name of her firm or the name of her employed solicitor. Orders 1. For the reasons given above, I make the following orders: 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: 1. to all media, including but not limited to print, radio, television, internet and social media; and 2. throughout the Commonwealth. 1. The following pseudonyms will apply in any order or judgment made in this proceeding: 1. the plaintiff will be referred to by the pseudonym "XY"; 2. 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 3. 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". 1. Orders (2) to (4) inclusive are to apply until 1 November 2022 or until further order, whichever is the sooner. 2. 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) 1. Orders (2) to (5) do not prevent the disclosure of any information to: 1. a Court or Tribunal; or 2. the New South Wales Police or to the Australian Federal Police. 1. 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. 2. 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: 1. investigating, handling or otherwise dealing with issues, matters, allegations, claims or complaints involving the plaintiff or the plaintiff's law practice; 2. 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 3. instituting or carrying on legal proceedings involving the plaintiff or the plaintiff's law practice in any Court or Tribunal. 1. Orders (2) to (5) do not prevent the disclosure of any information within or between the Law Society, the OLSC and the Bar Association. 2. 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: 1. the status (including, for the avoidance of doubt, the suspension) of the plaintiff's practising certificate; 2. the status of the plaintiff's law practice; or 3. 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. 1. Orders (2) to (5) do not prohibit the disclosure of any information by the Law Society or the OLSC: 1. 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 2. 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. 1. 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. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 October 2021