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

Supreme Court New South Wales

Medium Neutral Citation: Nationwide News Pty Ltd v JS and SD [2022] NSWSC 774 Hearing dates: 6 June 2022 Date of orders: 14 June 2022 Decision date: 14 June 2022 Jurisdiction: Common Law Before: Basten AJ Decision: (1) Allow the appeal from the suppression and non-publication orders made in the Local Court at Hornsby on 17 December 2021. (2) Set aside those orders and in place thereof: (a) note that, pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the name of the victim of the alleged assaults, and of any other child who may appear as a witness or be mentioned in the Local Court proceedings, including any information which identifies the child or children or is likely to lead to that identification, is prohibited, and that publication includes publishing or broadcasting in any medium, and dissemination by electronic means such as the internet and by way of social media; and make the following orders: (b) pursuant to s 7(a) and on the ground in s 8(1)(c) of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act), the statutory non-publication requirements noted above, apply to the proceeding in this Court; (c) pursuant to s 7(a) and on the ground in s 8(1)(c) of the Act, there be no publication or disclosure of the names of, or any information, picture or other material that identifies or is likely to lead to the identification of: (i) either of the first and second defendants as the persons charged and the subject of the AVO proceedings, other than to note that they are the former foster carers of William Tyrrell; (ii) the place and locality of residence and places of work of the first and second defendants; and (iii) the school and locality of the school attended by the child or children the subject of the protection noted in par (a) above. (3) So far as necessary, revoke the interim orders made in this Court on 6 June 2022. (4) Pursuant to s 7(a) and on the ground in s 8(1)(a) of the Act, order that there be no publication or disclosure of the following: (a) the social media posts by individuals contained in the material annexed to the affidavit of Marlia Saunders dated 17 February 2022, and (b) the statement of facts annexed to affidavit of Lindsay Stankovic dated 28 April 2022, without prejudice to any disclosure permitted in the proceedings to which the annexure relates. (5) These orders are to apply both within New South Wales and in all States and Territories in Australia. (6) The orders are to apply for a period of 3 years or until the proceedings in the Local Court have been determined, whichever is the later, but may be varied or revoked by this Court or the Local Court prior to their termination. (7) Give leave to the parties to seek orders as to costs or an order under the Suitors' Fund Act 1951 (NSW), such application to be made within 14 days of delivery of this judgment. Catchwords: APPEAL – nature of appeal – appeal from Local Court non-publication orders – de novo hearing – Court Suppression and Non-publication Orders Act 2010 (NSW), s 14 MEDIA AND COMMUNICATIONS – non-publication orders – when "necessary" – need to identify relevant ground – scope of information "otherwise concerning" a party – suppression of affidavit evidence indicating expected response to publication – Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8 MEDIA AND COMMUNICATIONS – non-publication orders – purpose of order – protecting safety of person – protection of other public interest – need to identify public interest PRACTICE AND PROCEDURE – statutory protection of child's identity – court orders to similar effect inappropriate and unnecessary - Children (Criminal Proceedings) Act 1987 (NSW), s 15A Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A Coroners Act 2009 (NSW), s 74 Court Suppression and Non-publication Orders Act 2010 (NSW), ss 3, 6, 7, 8, 11, 12, 14, 15 Cases Cited: Application by John Fairfax Publications Pty Ltd re MSK, MAK, MMK and MRK [2006] NSWCCA 386 Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) (2020) 275 FCR 377; [2020] FCAFC 44 Welker v Rinehart (No 5) [2012] NSWSC 45 Texts Cited: P Taylor SC et al, Ritchie's Uniform Civil Procedure NSW, Vol 2, p 52,122, [60,010.5] Category: Principal judgment Parties: Nationwide News Pty Ltd (First Plaintiff) Nine Network Australia Pty Ltd (Second Plaintiff) Australian Broadcasting Commission (Third Plaintiff) Network Ten Pty Ltd (Fourth Plaintiff) JS (First Defendant) SD (Second Defendant) NSW Police (Third Defendant) Secretary, Department of Communities and Justice (Fourth Defendant) Representation: Counsel: Mr D R Sibtain (Plaintiffs) Mr J Stratton SC (First/Second Defendants) Mr J Harris (Fourth Defendant)