Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Haddad v The GEO Group Australia Pty Ltd (No 2) [2024] NSWCA 140 Hearing dates: On the papers Date of orders: 11 July 2024 Decision date: 11 July 2024 Before: Kirk JA; Stern JA; Griffiths AJA Decision: The application for a non-publication order is dismissed. Catchwords: MEDIA AND COMMUNICATIONS — Publication — Court Suppression and Non-publication Orders Act 2010 (NSW) – Informal application that appellant's name appearing in a published judgment be replaced by pseudonym – Unwarranted assumption that Personal Injury Commission's acceptance of pseudonym would be adopted – PTSD and major depressive order alone not sufficient to justify order – Criteria require more than that an order be "convenient, reasonable or sensible, or to serve some notion of the public interest" – No evidence of significant risk of harm Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW) ss 6, 8(1)(c) Personal Injury Commission Rules, r 132 Cases Cited: AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46; (2019) 97 NSWLR 1046 Council of New South Wales Bar Association v EFA (A Pseudonym) [2021] NSWCA 339; (2021) 106 NSWLR 383 DRJ v Commissioner of Victims Rights [2020] NSWCA 136 Haddad v The GEO Group Australia Pty Ltd [2022] NSWPICPD 23 Haddad v The GEO Group Australia Pty Ltd [2024] NSWCA 135 Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 Kostov v YPOL Pty Ltd (No 2) [2019] NSWCA 1 Misrachi v Public Guardian [2019] NSWCA 67 Category: Consequential orders Parties: Anthony Haddad (Appellant) The GEO Group Australia Pty Ltd ACN 051 130 600 (Respondent) Representation: Counsel: Appellant in person P Herzfeld SC; R Harvey (Respondent) Solicitors: Acorn Lawyers (Appellant) Moray & Agnew (Respondent) File Number(s): 2023/336151 Publication restriction: Nil. Decision under appeal Court or tribunal: Personal Injury Commission Jurisdiction: Presidential Division Citation: [2023] NSWPICPD 60 Date of Decision: 28 September 2023 Before: Wood DP File Number(s): A2-W2285/21 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] JUDGMENT 1. THE COURT: On 5 June 2024 this Court handed down its decision rejecting the appellant's appeal from a decision of a presidential member of the Personal Injury Commission (PIC): Haddad v The GEO Group Australia Pty Ltd [2024] NSWCA 135. The appellant has made an informal application that his name be replaced by a pseudonym. The Court has treated this as an application under the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act). 2. The application is rejected. Context 1. The issue of the manner of identification of the appellant was raised by the Court at the outset of the hearing of the appeal. Counsel then appearing for the appellant explained that "there was a determination made in the Commission in November 2021 that the identity of the applicant, as he was called below be de-identified". He said: Your Honours will see that this is a matter involving a psychological injury. There are the criminal matters. There's primarily the psychological injury and a pseudonym was adopted in the Commission below because the appellant's concerns about being identified is part of his psychological condition. … We've adopted it here because that was the naming of the proceedings in the Commission below. 1. When the Court noted that there was no copy of any such PIC order in the materials before it, counsel for the appellant said "[p]erhaps if we could have leave to provide the Court with a note, a copy of that in due course". He was given permission for that to occur. Senior counsel for the respondent then said the following on the issue: as we understand it the order in the Commission was simply to de-identify the appellant in any published set of reasons. We don't think there was a suppression over material, and the reason that's relevant is that obviously in the blue book, for example, in this Court there will be material which certainly identifies the appellant. We for our part don't really take a position on any of this, but if there is to be an order in this Court suppressing material or restricting access to material your Honours will need to be satisfied that that is an appropriate order to make. 1. No copy of any orders made below, nor note addressing the issue, was provided on behalf of the appellant. Nor was any application made in this Court under the Act, prior to publication of its judgment, for an order that the appellant be referred to by pseudonym or that his identity otherwise be made the subject of a non-publication order (NPO). 2. In this context the Court noted at [4] of its judgment that although the appellant was referred to by a pseudonym in the PIC proceeding no application had been made for any such order in the appeal, and proceeded to identify him by name. 3. On the day after this Court handed down its judgment an email was sent by the appellant's solicitor which said: We understand that no such application [for a non-identification order] was before the Court of Appeal, however, the use of a pseudonym was accepted / directed in the lower court proceedings and in the Court of Appeal Pleadings & we assumed that it would also apply to the judgment. 1. The assumption referred to was unwarranted, in particular given what had transpired in the hearing of the appeal. 2. The solicitor forwarded the submissions on the issue that had been provided to the PIC. In response, sent that day, the Court indicated that a formal application for a non-publication order should be made if such an order was sought, supported by any relevant evidence, including up-to-date medical evidence if applicable. No such application was made. However, on 27 June 2024 an email was sent to the Court directly by the appellant, which included the following: As the court would be aware, and as supported by a review of my file, I have a health condition, and it is such that the unexpected publishment of my surname in association with these proceedings has been a significant source of distress to me and my family. Throughout my claim, in the Administrative Appeals Tribunal (AAT), the NSW Personal Injury Commission (PIC) and all submissions to their honours, my identity has been anonymised with the assistance of a universal pseudonym. Therefore, I respectfully request the court to withdraw all published versions of the above decision from the legal websites to which it was published and revert to the pseudonym that was used during my proceedings in the PIC and the submissions … as a suggested suitable alternative citation. An order requiring the removal of any posts citing the above would be of great assistance; I note that the respondent's legal representatives had cited the decision in online blog posts. 1. In response, an email was sent to the appellant on behalf of the Court the next day, which relevantly said: I also note that you now make an informal application as opposed to the opportunity provided to your legal representatives dated 6 June 2024 to make a formal application, together with any supporting evidence. This opportunity was extended in circumstances where no formal application for a non-publication order was made during the hearing, notwithstanding that the Court itself drew attention to the matter then. You have not provided the Court with any evidence of your current health condition. You are invited to provide any submissions and supporting evidence as to why the Court should de-identify your name and are also invited to confirm that you no longer have legal representation. The respondent is also invited to state its position when it is aware of all the submissions and material upon which you rely. 1. The appellant responded that night with an email, which relevantly said: I confirm that I am acting independently of my solicitor regarding this matter (de-identification). … In support of my request, I attach as evidence my most recent medical attendant statement completed by my treating psychiatrist supporting that my condition is unchanged; I hope this is of assistance. I have highlighted the transcript sections that deal with the de-identification issue, which may be of assistance. During the hearing of this matter on 26 April 2024, His Honour [Justice] Kirk requested that his Associate be provided a copy of the decision from the lower tribunal regarding a request for my actual name to be de-identified from the published decision of that tribunal (PIC Matter No. W2285/21). A copy of the decision is attached. I submit that judgement and its precedent value are not prejudiced should the court accept my application to adopt a pseudonym; the material facts and legal issues contained within the judgement remain available to the legal profession should my application be successful The decision has thus far been widely circulated on the websites listed below, … and this has caused me considerable distress … 1. The email then included links to a range of websites in which this Court's decision in the matter was referred to. Attached to the email was a medical certificate by a treating psychiatrist indicating that the appellant suffered from post-traumatic stress disorder (PTSD) along with a major depressive disorder, and these were chronic and enduring such as to render him with a total and permanent disability. 2. Also attached to the email was a copy of a decision of Member Brittliff of the PIC dated 21 November 2022 making a de-identification direction pursuant to r 132 of the Personal Injury Commission Rules 2021 (NSW). Member Brittliff's decision related to a decision of the PIC by Member Read, which decision was appealed to a presidential member, from which decision the appeal was brought in this Court. 3. An email was then sent on behalf of the Court giving the respondent an opportunity until 5 July 2024 to make any submissions on the issue, after which time a decision would be made on the papers. The respondent did provide such submissions which did not take a position on the application but which helpfully outlined relevant factual and legal issues for the assistance of the Court. The respondent also provided documentary evidence annexed to a solicitor's affidavit. That material indicates that prior to the decision of Member Brittliff the Commission had refused an application to de-identify the appellant in an earlier decision of a presidential member, handed down on 28 June 2022: Haddad v The GEO Group Australia Pty Ltd [2022] NSWPICPD 23. That decision is publicly available and records that the appellant had indicated that he suffered from PTSD and "major depression". Determination 1. The direction made by Member Brittliff in the PIC was expressed in these terms: I direct that the name Tony Haddad (Applicant) be de-identified in the decision issued by Member Read in matter number W2285/21 dated 11 October 2022 (Decision) before the Decision is published. 1. Such an order had been opposed by the respondent below on the principal basis that an application for de-identification had been denied in the earlier related PIC proceedings, and that there had been no material changes since that decision. However, Member Brittliff was persuaded that based on the evidence presented to her such an order was warranted with respect to Member Read's decision: The potential negative safety, health and wellbeing effects of publishing the Decision without de-identification, in my view, is apparent. The Decision contains subject matter that is traumatic to the Applicant (that relates to his health and wellbeing). The Decision also contains sensitive information regarding the significant traumas and psychiatric history experienced by the Applicant and his family that, in my view, is clearly linked to potential safety, health and wellbeing concerns for the Applicant. Psychiatric/psychological concerns are well-established grounds for the consideration of the present nature of application. I consider de-identification to be appropriate in the circumstances to ensure that Applicant's wellbeing is not further impacted. In my view, the Related Decision was procedural in nature and differs from the present decision in that the present decision contains substantially more detail about the Applicant's psychiatric and employment history and a range of other matters that were not considered in the Related Decision. 1. The member relied on paragraphs (c) and (e) of r 132(4) of the Personal Injury Commission Rules, which respectively refer to "the safety, health and wellbeing of a person affected or named by the publishable decision", and "whether it is necessary in the public interest for the direction to be given and whether the public interest in giving the direction significantly outweighs the public interest in open justice". 2. The member's direction spoke only to identification of an identified decision given in the PIC. It did not and could not address how the appellant should be identified in this Court. 3. The criteria for making such an order in this Court are set out in the Act: 6 Safeguarding public interest in open justice In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. … 8 Grounds for making an order (1) A court may make a suppression order or non-publication order on one or more of the following grounds— (a) the order is necessary to prevent prejudice to the proper administration of justice, (b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security, (c) the order is necessary to protect the safety of any person, (d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including sexual touching or a sexual act within the meaning of Division 10 of Part 3 of the Crimes Act 1900), (e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice. (2) A suppression order or non-publication order must specify the ground or grounds on which the order is made. (3) Despite subsection (1)(d), a court may make a suppression order or non-publication order on the grounds that the order is necessary to avoid causing undue distress or embarrassment to a defendant in criminal proceedings involving an offence of a sexual nature only if there are exceptional circumstances. 1. As has been emphasised many times, all of the criteria in s 8(1) are expressed in terms of whether an order is "necessary". It can be accepted that that notion must be construed in the context of each particular paragraph of s 8(1): Council of New South Wales Bar Association v EFA (A Pseudonym) [2021] NSWCA 339; (2021) 106 NSWLR 383 at [219]-[220]. Nevertheless, as the High Court said in a related context, "necessary" is "a strong word" and requires more than that an order be found to be "convenient, reasonable or sensible, or to serve some notion of the public interest": Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at [30] and [31]. It is implicit in the Act that significant weight is to be afforded to the principle of open justice: Misrachi v Public Guardian [2019] NSWCA 67 at [11]; DRJ v Commissioner of Victims Rights [2020] NSWCA 136 at [30]. This Court has emphasised the importance of any application under the Act being supported by cogent evidence: Kostov v YPOL Pty Ltd (No 2) [2019] NSWCA 1 at [14]-[16]; Misrachi at [10]. 2. In the course of ordinary life physical or mental health conditions are generally regarded as private and confidential matters. But litigation is, in general, a public process. Such conditions are frequently disclosed in the course of cases brought in courts or tribunals. If a case is brought involving such matters then it can be expected that they will be addressed in an open manner. For some contrary position to be adopted, in proceedings to which the Act applies, the applicant must establish a sufficient necessity of the kind identified in s 8. 3. Here it can be inferred that the appellant seeks to rely in substance on the criterion identified in s 8(1)(c), namely that a pseudonym order is necessary to protect his safety. That criterion extends to consideration of psychological safety: DRJ at [29]. 4. The one piece of medical evidence provided to this Court establishes that the appellant has mental health conditions, namely PTSD and a major depressive disorder. The submissions that were put to the PIC suggested that he also suffers from hypervigilance and a genuine if paranoid fear for the safety of himself and his family. He has had fears that he is being followed. The submissions to the PIC referred to medical reports in support of these claims. We have not been provided with copies of those medical reports and these points are not supported by the certificate provided to us. However, for current purposes we are prepared to give the appellant the benefit of the doubt and accept that, at least in the past, he has suffered from the afflictions described. 5. Even making generous allowance for the claims made by the appellant, we do not consider that a pseudonym order is necessary to protect his safety. Nor is it otherwise necessary in the public interest. That is so taking account of the following matters: 1. Many litigants suffer physical or mental health conditions, as do innumerable other members of the community. The fact that the appellant suffers from PTSD and a major depressive disorder does not, in the particular circumstances of this matter, constitute a basis for the making of the order sought. The certificate provided does not establish a significant risk of harm to the appellant from permitting publication. The certificate is a short pro forma statement which was apparently obtained in support of the appellant's application for "group salary continuance" in December last year. It does not provide any substantive details of the appellant's health conditions nor does it suggest that there is a significant risk of harm if the appellant is identified. 2. The appellant has been identified in a previous decision of the PIC. That decision itself refers to the appellant suffering from PTSD and depression. 3. Our earlier decision does not address the details of the appellant's medical conditions in any significant way. The appeal turned on legal issues of statutory construction. 4. Nothing in our decision provides information as to where the appellant or his family live, such as might exacerbate his fears for his own and his family's safety. 5. The material sent by the appellant also indicates that there has been some online mention of this Court's decision, albeit of a kind which is commonplace for such decisions. He has not identified any media coverage of the decision, let alone unfair coverage of the kind which has been seen as significant in some cases: eg AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46; (2019) 97 NSWLR 1046 at [101]-[103]; EFA at [230]. 6. The application for an NPO was only made after the judgment had been published, despite the fact that the issue was raised by the Court prior to that time. Even if an order of the kind sought was now made, there would be doubts as to its efficacy. 1. The application for a non-publication order should be dismissed. The respondent indicated that it did not seek costs in relation to the application. ********** 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: 11 July 2024