Court of Appeal Supreme Court New South Wales Medium Neutral Citation: D1 v P1 [2012] NSWCA 314 Hearing dates: 30 March 2012 Decision date: 28 September 2012 Before: Bathurst CJ at [1]; McColl JA at [92]; McClellan CJ at CL at [93] Decision: (1) Leave to appeal be granted. (2) Direct the applicants to file the Notice of Appeal in the form of the draft in the White Book within 7 days. (3) Orders of Fullerton J made on 1 March 2012 be varied as follows: (i) By the substitution of 29 March 2013 for 3 August 2012 in pars [2] and [6] of her Honour's orders. (ii) By the addition of the following order: "Grant the parties and the intervenor, Fairfax Media Publications Pty Ltd, liberty to apply to a judge of the Common Law Division to vary the expiry date contained in Orders 2 and 6 of her Honour's orders." (4) Appeal otherwise dismissed. (5) Order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 prohibiting the publication or other disclosure of this judgment and the schedules thereto for a period of 28 days from the date hereof. (6) Direct the applicants within 10 days indicate which part of the judgment and the schedules thereto should continue to be subject to a suppression order following the expiration of the 28 days referred to in Order (5) above. (7) Direct the respondent and Fairfax Media Publications Pty Limited indicate within a further period of 7 days the extent to which they contend those portions of this judgment which the applicants seek to have suppressed beyond the period referred to in Order (5) should not be so suppressed. [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.] Catchwords: APPEAL - Court Suppression and Non-publication Orders Act 2010 (NSW) s 14 - operation of s 14 - nature of appeal - whether de novo appeal PROCEDURE - interlocutory issues - suppression orders - order sought suppressing information concerning pendency and subject matter of proceedings - whether order "necessary to protect the safety of any person" - Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7 and 8 STATUTORY INTERPRETATION - words and phrases - Court Suppression and Non-publication Orders Act 2010 s 8 - "necessary" Legislation Cited: Court Suppression and Non-publication Orders Act 2010 s 3, s 6, s 7, s 8, s 12, s 13, s 14 Evidence Act 1995 s 50 Cases Cited: Builders' Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616 Coal and Allied Operations Limited v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 Dwyer v Calico Timbers Pty Limited [2008] HCA 13; (2008) 234 CLR 124 Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125 John Fairfax Group Pty Limited (Receivers and Managers appointed) v Local Court of New South Wales (1991) 26 NSWLR 131 Johnston v Cameron [2002] FCAFC 251; (2002) 124 FCR 160 OV v Members of the Board of the Wesley Mission Council [2010] NSWCA 155; (2010) 270 ALR 542 Rinehart v Welker [2011] NSWCA 403 Category: Principal judgment Parties: D1, D4, D5, D7, D8, D9, D10, D11, D12, D13, D14 (Applicants) P1, P2, P3, P4, P5, P6 (Respondents) Fairfax Media Ltd (Intervenor) Representation: Ms J Sandford and Ms L Brown (Applicants) Mr J L Sharpe (Respondents) Mr M O'Brien (Solicitor for the Intervenor) Collin Biggers & Paisley (Applicants) Porters Lawyers (Respondents) Johnson Winter & Slattery Lawyers (Intervenor) File Number(s): 2012/00072061 Publication restriction: Yes: See Orders Decision under appeal Jurisdiction: 9111 Citation: P1 & Ors v D1& Ors Date of Decision: 2012-03-01 00:00:00 Before: Fullerton J File Number(s): 2009/297873; 2009/297863; 2009/297864; 2009/297865; 2009/248649; 2009/297986 Judgment 1BATHURST CJ: This is an application for leave to appeal from a judgment of Fullerton J of 1 March 2012, wherein her Honour refused to continue certain suppression orders made by Hidden J on 25 July 2011 on the application of various defendants in proceedings 2009/00297873 (the "related proceedings"), instead substituting more limited orders in their place. An order was made that the application for leave be heard concurrently with the appeal. 2It is not necessary to set out the orders made by Hidden J in full. In effect, they ordered, first, that the parties to the related proceedings be identified only by pseudonyms. Second, they prohibited the disclosure, by publication or otherwise, of any evidence given, documents filed, served or tendered, or submissions made, in support of the application. Third, they prohibited the disclosure, by publication or otherwise, of information, including the subject matter of the proceedings, which would directly or indirectly reveal, or tend to reveal, the identity of, or facilitate the identification of, any party to, or proposed witness in the related proceedings. The orders made were made pursuant to the provisions of s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) ("the Act"). The background to the proceedings 3The related proceedings concern a claim by six plaintiffs (P1 - P6 respectively) arising out of sexual assaults (or, in the case of P5, whose case has not been subject to criminal prosecution, of alleged sexual assaults) by the third defendant D3 on P1, P5 and P6 whilst he was a teacher and they were pupils at a school operated, to use the term loosely, by D1 and D2 ("the school"). [suppressed]. The claims against the defendants, other than D3, make various allegations arising out of their failure to take steps to prevent the assaults occurring. 4One of the bases on which the suppression orders were sought was the effect of publication on X. [suppressed]. 5As I indicated above, Hidden J made various orders under s 7 of the Act on 25 July 2011. Subsequent to the making of those orders, the applicant defendants (the applicants) filed a Notice of Motion seeking certain variations to the orders. P1-P6 filed identical motions seeking that the orders be revoked, whilst Fairfax Media Publications Pty Limited ("Fairfax") filed a motion seeking that the orders be reviewed pursuant to s 13 of the Act. 6The proceedings were heard by the primary judge on 31 October 2011, 11 November 2011 and 3 February 2012. On 1 March 2012 her Honour made orders contained in a schedule to her judgment. For convenience that schedule is a schedule to this judgment (Schedule 1). In effect, whilst she continued the order that the parties to the related proceedings be referred to by pseudonyms and made certain other orders prohibiting disclosure of the allegations [suppressed], at least up to 3 August 2012, she declined to make a general order prohibiting any publication of the existence of the related proceedings or of their nature. The principal issue on appeal was whether such a general order should have been made. The reasoning of the primary judge 7The application for the extension of the orders made by Hidden J was made primarily on the ground in s 8(1)(c) of the Act, namely, that the orders were necessary to "protect the safety of any person". It was submitted before the primary judge that X was vulnerable to the risk of suffering serious, even fatal, injury were the identity of the defendants disclosed and/or were the subject matter of the proceedings to be further published in the public domain. The other person said to be vulnerable if there was further publication was P3 but no reliance was placed on his position in the present application. 8[Suppressed]. The primary judge noted that at the time of the hearing before her [suppressed]. 9It was not in issue before the primary judge that X suffered from a form of mental disorder. The primary judge noted that [suppressed]. The primary judge further noted that it was accepted by the plaintiffs and Fairfax that there was a risk that X would self-harm in the future, even to the extent of another suicide attempt, given X's underlying psychiatric disorder. 10The primary judge identified the question which she was required to answer as whether the suppression orders sought by the applicants, namely, to prohibit any publication of the proceedings, were necessary to protect X against the risk of self-harm. In that context she reviewed the medical evidence before her and the evidence of X's mother, who gave evidence on the application. Her conclusions may be summarised as follows: (a) [Suppressed] (b) [Suppressed] (c) [Suppressed]. (d) [Suppressed]. (e) [Suppressed] 11The primary judge noted there had been some press reports of the civil proceedings. [Suppressed]. 12The primary judge also noted that this appeared to be the only press coverage of the civil proceedings and that the only evidence of any direct connection between publication of the related proceedings in the press and behaviour symptomatic of X's illness was from X's mother. 13In those circumstances the primary judge concluded that she was satisfied that [suppressed]. She stated that she was satisfied that there was a sufficient nexus between [suppressed]. She stated that such an order should continue until 3 August 2012 when she would consider whether it was necessary for the form of order to be further extended. She was satisfied on the same basis that the identity of D5 - D14 should also be suppressed from publication and that D3 should be referred to as a former principal and not referred to by name. 14Notwithstanding these conclusions, her Honour expressed the view that she did not regard a blanket prohibition as necessary in the circumstances. Her reasoning was to the following effect: "[70] As a result of the same persisting doubts as to X's state of knowledge of the fact of civil proceedings and their pendency, in circumstances where the existence of those proceedings and their general nature has been in the public domain for some years, and what I accept are the probabilities that those proceedings will continue to attract community interest and discussion beyond the reach of the Court to silence, I am not persuaded a blanket prohibition on publication of the kind sought by the defendants ought be made. [Suppressed]. In coming to that view, I take into account, as I am required to do, that the primary objective of the administration of justice is to safeguard the public interest in open justice." The draft grounds of appeal 15In a draft notice of appeal filed on 23 March 2012, the applicants raised the following grounds: "1. Her Honour erred in finding that it was not necessary for the protection of X to suppress the identities of D1, D2, and D3, and, to suppress the disclosure of information (save to the extent provided by the orders made on 1 March 2012), that would reveal, or tend to reveal: (a) the pendency and subject matter of, and information derived from the proceedings in the court below (Related Proceedings); (b) the identity of any party to, proposed witness in, or other person named in the pleadings in the Related Proceedings. 2. Her Honour erred in failing to find that exposure to information concerning the pendency and subject matter of the Related Proceedings will operate as a psychological stressor for X [suppressed]. 3. Her Honour erred in applying the statutory criterion to the facts, in that her Honour construed the test of necessity so as to require proof of: (a) X's state of knowledge of the fact of Related Proceedings; (b) the trigger(s) [suppressed]; and (c) a direct connection between publication in the press and [suppressed]; 4. Her Honour erroneously construed section 6 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) in that her Honour elevated the requirement to take into account the public interest in open justice as a primary objective of the administration of justice, to a requirement to take in account that public interest as the primary objective of the administration of justice. 5. Thereby, her Honour erred in failing to give due weight to the objective, in the proper administration of justice, of protecting children from the adverse effects of publicity from litigation. 6. Her Honour misapprehended the evidence of Dr. A in that her Honour erroneously found that Dr. A associated the risk that X will self-inflict further [suppressed], with the event of X learning that the Related Proceedings had issued. 7. Her Honour erred in discounting, and in failing to give sufficient weight to the evidence of Dr. A. 8. Her Honour erred in failing to give sufficient weight to the evidence of Dr. B, Dr. C and X's mother. 9. Her Honour erred in refusing to suppress disclosure of information concerning the pendency and subject matter of the Related Proceedings on the bases that; (a) [suppressed] (b) the probabilities that those proceedings will continue to attract community interest and discussion beyond the reach of the Court to silence." The parties' submissions 16In a context of an application to adduce new evidence, the applicants identified two questions, which they submitted were relevant to the issues in question. The first was whether there was a risk that exposure to information in the public domain concerning the pendency and subject matter of the related proceedings and the identify of the parties to those proceedings will [suppressed]. The second was whether, in the context [suppressed]. 17In that context the applicants made particular submissions in relation to the various grounds of appeal. 18So far as grounds 2 and 3 were concerned, the applicants emphasised that their case was not that [suppressed]. 19In support of that proposition they stated that the evidence demonstrated a [suppressed]. 20In support of these grounds, the applicants also relied on the medical evidence tendered before the primary judge. They pointed to the report of Dr C [suppressed]. They relied on Dr B's assessment (this assessment was not before the trial judge, but was referred to in the schedule filed pursuant to s 50 of the Evidence Act 1995 (NSW)). 21The applicants also relied on the fact that following Dr B's assessment [suppressed]. They submitted that this demonstrated that [suppressed]. 22The applicants pointed out that Dr A was in court when X's mother gave evidence before the primary judge and that it was in that context he expressed the opinion that it was likely that the [suppressed]. They submitted that the trial judge did not take into account that this opinion was consistent with that reached by Dr B. 23The applicants referred to the finding of the primary judge that there was a sufficient nexus between [suppressed]. They submitted that it followed that [suppressed]. They submitted that Dr A's opinion was not based on the assumption [suppressed]. They submitted, in those circumstances, that the primary judge erred in directing a special focus to the question of [suppressed]. 24In that context they also submitted that the primary judge erred by identifying the correct question as whether [suppressed]. They submitted rather that the correct question was whether, [suppressed]. They submitted that Dr A gave an affirmative answer to that question. 25The applicants also criticised the primary judge for not taking into account the views expressed by [suppressed]. 26Finally in relation to these grounds of appeal, the applicants submitted that the primary judge erred in drawing a distinction between publicity concerning the criminal prosecution of D3 and publicity concerning the related proceedings. 27In relation to grounds 4 and 5, the applicants submitted that in concluding that she was obliged to take into account the objective of open justice as the primary objective of the administration of justice, the primary judge erred in failing to take into account a competing objective, namely, ensuring that open justice does not expose children to a risk of harm. 28In relation to grounds 6 and 7, which concern the evidence of Dr A, the applicants submitted that the primary judge erred in discounting his evidence on the basis he had not personally assessed X. They submitted that his evidence as to the nature of borderline personality disorder was not challenged or contradicted and that his conclusion was consistent with the conclusions of those who had treated X, in particular Dr C and Dr B. 29In relation to grounds 8 and 9 it was contended that the primary judge failed to give sufficient weight to the evidence of Dr B and that of Dr C. They submitted that her Honour's finding that there was no necessity for the orders, [suppressed], ignored the opinion expressed by Dr A in cross-examination to the effect that [suppressed]. It also, it was submitted, ignored the fact that [suppressed]. In this regard reliance was placed on the report of Dr C of [suppressed], which was not before the primary judge. 30On the hearing of the appeal counsel for the applicants conceded that [suppressed] the finding of the primary judge to the contrary had been superseded. Counsel for the applicants acknowledged that Dr A [suppressed]. 31Counsel for the applicants placed particular reliance on the oral evidence of Dr A, [suppressed]. That evidence appeared to be given on the assumption that [suppressed]. She referred to Dr B's evidence that [suppressed]. She submitted this was supported by the evidence of X's mother. 32Counsel for the applicants also submitted that it was sufficient to satisfy the test of necessity for the purpose of s 8(1)(c) of the Act that there was a real risk that further publicity of the proceedings would lead to X either attempting to or committing suicide. 33Reliance was also placed by the applicants on cases in which the courts have indicated that courts will be solicitous of the effect litigation has on children. Reference was made to Johnston v Cameron [2002] FCAFC 251; (2002) 124 FCR 160 at [24]; OV v Members of the Board of the Wesley Mission Council [2010] NSWCA 155; (2010) 270 ALR 542 at [15], [79]-[82]. In the latter case the identity of children involved in litigation was suppressed. Reliance was also placed on the following passage from the judgment of Mahoney JA (with whom Hope JA agreed) in John Fairfax Group Pty Limited (Receivers and Managers appointed) v Local Court of New South Wales (1991) 26 NSWLR 131 at 163-164: "first, it is important to remember - because, in what is said about the open conduct of the courts, it appears sometimes to be forgotten - that the open conduct of the courts can cause great pain and loss to those touched by what is done and what is publicised. It is, in my opinion, the function of the law - and the obligation of the courts in administering it - to avoid such pain and loss to the extent that it is possible to do so. To the extent that this detriment to the individual is not avoided, the law is deficient and the courts have been less than fully effective. Secondly, the assumption which, I think, sometimes emerges from what is urged for the open conduct of courts is that that principle is to be upheld and the right to publish is to be unrestricted notwithstanding that the individual suffers for it. If this assumption underlies the submissions made in the present proceeding, it is an assumption which I would not accept. As I have said, the principle that the courts are to be open and that the media may publish what is done in them is not an end in itself. The principle is adopted because it is judged to be the means by which other and more fundamental goods will be achieved. The power which the community gives to any person, whether he be in Parliament, an official in government, or a judge is to be exercised properly and accountably. And, it is believed, that will be achieved if the power is exercised, as in the present case, in open court and subject to full publicity." This passage must now be read subject to the provisions of the Act. 34In that context, it was submitted that her Honour erred in approaching the legislation on the basis that the Court was obliged to take into account that safeguarding open justice was the primary objective of the administration of justice, whereas s 6 of the Act only required it to be taken into account as a primary objective. 35The respondents in their submissions emphasised that it was apparent that [suppressed]. They also pointed to the fact that by the time [suppressed], there had been a number of newspaper reports [suppressed]. They pointed out that after Dr D's report there were a number of other newspaper reports. They pointed out that notwithstanding these reports, there was nothing [suppressed]. 36Further, the respondents submitted that in the context of providing protection for the welfare of young persons, there was a necessity for the public to be aware of any breaches of the law or possible breaches of the law, both in the terms of the past but also as a means for the prevention of harm to young persons in the future. 37Finally the respondents submitted that the medical evidence tendered by the applicants did not fully set out the medical history of X. 38The intervenor, Fairfax Media Limited (the intervenor), submitted that the Act does not contemplate that an order be made if there is a risk of harm established and nothing else. It submitted the Court needed to be satisfied that there was a real connection between publication and the risk of harm, such that it was necessary to include a further level of prohibition over and above those ordered by the primary judge. 39The intervenor submitted that the medical evidence demonstrated that X decompensates from a myriad of triggers and that for the extended orders to be made the Court would need to be satisfied that further publication of the restricted nature permitted by Fullerton J would, as a separate trigger, directly result in harm to X. Legislation 40The following provisions of the Act are relevant to this application: "3 Definitions In this Act: court means: (a) the Supreme Court, Land and Environment Court, Industrial Court, District Court, Local Court or Children's Court, or (b) any other court or tribunal, or a person or body having power to act judicially, prescribed by the regulations as a court for the purposes of this 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. 7 Power to make orders A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of: (a) information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court, or (b) information that comprises evidence, or information about evidence, given in proceedings before the court. 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 an act of indecency), (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. ... 13 Review of orders (1) The court that made a suppression order or non-publication order may review the order on the court's own initiative or on the application of a person who is entitled to apply for the review. (2) Each of the following persons is entitled to apply for and to appear and be heard by the court on the review of an order under this section: (a) the applicant for the order, (b) a party to the proceedings in connection with which the order was made, (c) the Government (or an agency of the Government) of the Commonwealth or of a State or Territory, (d) a news media organisation, (e) any other person who, in the court's opinion, has a sufficient interest in the question of whether a suppression order or non-publication order should have been made or should continue to operate. (3) On a review, the court may confirm, vary or revoke the order and may in addition make any other order that the court may make under this Act. 14 Appeals (1) With leave of the appellate court, an appeal lies against: (a) a decision of a court (the original court) to make or not to make a suppression order or non-publication order, or (b) a decision by the original court on the review of, or a decision by the original court not to review, a suppression order or non-publication order made by the court. (2) The appellate court for an appeal under this section is the court to which appeals lie against final judgments or orders of the original court or, if there is no such court, the Supreme Court. (3) Each of the following persons is entitled to appear and be heard on an appeal under this section: (a) the applicant for the suppression order or non-publication order, (b) a party to the proceedings in which the order or decision subject to appeal was made, (c) the Government (or an agency of the Government) of the Commonwealth or of a State or Territory, (d) a news media organisation, (e) any other person who, in the appellate court's opinion, has a sufficient interest in the decision that is the subject of appeal. (4) On an appeal under this section, the appellate court may confirm, vary or revoke the order or decision subject to the appeal and may make any order or decision under this Act that could have been made in the first instance. (5) An appeal under this section is to be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal. (6) If judgments or orders of the original court are subject to review by another court (rather than appeal to another court), this section provides for a review of the original court's decisions instead of an appeal and in such a case references in this section to an appeal are to be read as references to a review." The nature of the appeal 41In considering this issue, it is necessary to have regard to each of s 13 and s 14 of the Act and the definition of "court" contained therein. I have set these provisions out above. 42In my opinion, s 13 and s 14 operate harmoniously. Section 13 is confined to a review by the original court which granted the order. Section 14 deals with an appeal by leave, either in respect of the order of the original court or the order of that court on a review. Section 14(6) is not dealing with a review made by the original court under s 13, but rather with a situation where there is no appeal from the original court (other than in the supervisory jurisdiction of this Court or the appeal to this Court provided for s 14(2)) but there is a statutory right of review to another court or tribunal. The subsection makes clear that whatever procedure is adopted, the evidentiary provision in relation to new or substituted evidence will apply. 43The nature of an appeal depends on the construction of the particular provision by which the right of appeal is conferred: Coal and Allied Operations Limited v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [11]; Dwyer v Calico Timbers Pty Limited [2008] HCA 13; (2008) 234 CLR 124 at [2]. In the present case, the wide powers to admit not only additional evidence but also substituted evidence, coupled with the fact that, subject to leave, a review under s 13 and an appeal under s 14 appear to be alternatives, lead me to the conclusion that the hearing on the appeal is a hearing de-novo: Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125 at [6]; Builders' Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616. 44As a practical matter, problems which could arise as a result of this construction can be controlled by the imposition of conditions on leave to appeal. Although questions of leave will depend upon each particular case, it is likely in cases involving a reconsideration of an order on fresh or different evidence, that leave will commonly be refused and the applicant left to exercise his or her right of review. Should leave be given in the present case 45There were, in my opinion, substantial reasons not to grant leave in this case. In effect what was sought, in many respects, was to reargue the matters raised before the primary judge in reliance on the evidence before her together with certain additional evidence, some of which could been tendered before her, and some of which updated or explained the evidence on which she considered the application. It would have been open to the applicants in those circumstances to seek a review of the primary judge's decision either from the primary judge or from another judge of the Court. 46Notwithstanding these considerations, it was appropriate, in my opinion, to grant the applicants leave. The questions involved are of importance, this Court has had only a limited opportunity to consider the issues raised by the Act and in addition to relying on the fresh evidence sought to be tendered, the applicants have submitted that the primary judge misconstrued the legislation. It was for those reasons that I joined in the grant of leave given at the commencement of the hearing. Consideration 47The applicants relied primarily on s 8(1)(c) in support of their contentions that the orders sought should be made. They also relied on s 8(1)(a) but accepted at the hearing that if the order was not necessary to protect the safety of X, thus not entitling them to an order on the grounds set out in s 8(1)(c), they would not be entitled to an order under s 8(1)(a). This concession was correct. 48The applicants also accepted, consistently with what was said in Rinehart v Welker [2011] NSWCA 403 at [31] that in order to establish that an order is necessary, it is not enough that it appears to the Court that the proposed order is convenient, reasonable or sensible. That is not to deny that whether necessity has been established will depend on the nature of the orders sought and the circumstances in which they are sought. 49The first issue which arises when considering necessity is whether and to what extent an applicant for a suppression order under s 7 of the Act who relies on the ground specified in s 8(1)(c) is required to prove, on the balance of probabilities, that the order sought is necessary to protect the safety of any person, in the sense that absent the order being made it would be probable that the person in question would suffer harm. Put another way, is it a precondition to the operation of the section that as a matter of probability the person in question would suffer harm if an order was not made? 50On this construction of the subsection consideration must be given to the alternate ways in which the probability of harm could be prevented. In the present case if the evidence establishes that the more limited prohibition on publication ordered by the primary judge, whilst not eliminating the risk or possibility of serious injury, would have the effect of not rendering the risk that such injury would occur probable, a court would not be entitled to make a more extensive order in reliance on s 8(1)(c) of the Act. 51The alternative construction of s 8(1)(c) is that all the section requires is for the Court to be satisfied on the balance or probabilities that the order sought is necessary to protect a person's safety. On this construction proof of the probability of harm is not a precondition. The necessity for such an order will be informed by the nature, imminence and degree of the likelihood of harm occurring to the relevant person. If the prospective harm is very severe, it may be more readily concluded that an order is necessary even if the risk is a possibility as opposed to a probability. Once again it would seem to me that alternative steps to the making of the suppression order sought would need to be considered in determining whether the order was in fact necessary. 52Further, whichever construction is correct, consideration needs to be given to the utility of making the order sought. That is of particular relevance in a case such as the present, where the incident occurred in [suppressed] and where there has already been publicity of the incident, giving rise to the litigation and the fact of the litigation. It seems likely that irrespective of the order made there will be further discussion of the matter. 53Finally, consideration must of course be given to the nature of the threat to the safety of the particular person concerned, in this case the nature and extent of self-inflicted harm or mental distress, which would probably occur if a suppression order is not made. 54Not all of these matters will require consideration in every case. However, to the extent that they require assessment, they must be assessed against the requirement imposed on the Court by s 6 of the Act to take account of the fact that a primary objective of the administration of justice is a principle of open justice. Orders made under s 7 are limited to restriction on disclosure of matters in proceedings before the Court and in that sense impact on the objective in s 6. Because of the conclusions to which I have come, it is not necessary to finally determine in the present case whether and to what extent it is necessary to take that objective into account in considering whether or not to make a suppression order once one of the grounds of necessity in s 8 is made out. However, depending on the particular facts of the case, it may well be appropriate in certain circumstances to do so. 55For the reasons set out below it is not necessary in the present case to determine which of the alternative constructions of s 8(1)(c) of the Act is correct. On either construction of the subsection the conclusions reached by the primary judge were correct and her orders should not be disturbed. 56Because of the extensive nature of the medical evidence tendered in the proceedings, I have attached a summary of it as a schedule to this judgment [suppressed]. It is convenient to deal with the issues referred to above by reference to that schedule. 57[Suppressed]. 58Further, the most recent medical reports are instructive on the question of whether suppressing the publication of the existence of the proceedings, as distinct from the identity of the parties, is necessary to protect the safety of X, on either construction of the subsection. 59[Suppressed]. 60[Suppressed]. 61[Suppressed]. 62[Suppressed] 63[Suppressed]. 64[Suppressed]. 65[Suppressed]. 66[Suppressed]. 67The medical evidence, particularly the most recent reports of Drs A and C [suppressed] does not go so far as to indicate the probability (being the higher of the two possible standards of proof postulated earlier in these reasons) of such self-harm if the existence of the related proceedings as distinct from the identity of the parties was disclosed. [Suppressed]. 68Further, if the alternate construction of s 8(1)(c) of the Act to which I have referred above is correct, it has not been established that an order prohibiting disclosure of the existence of the proceedings as distinct from the identification of the parties is necessary to protect X's safety. 69In these circumstances, in my opinion, the material does not establish the necessary level of risk that publication of the existence of the proceedings would cause X to inflict self-harm. 70My conclusion is fortified by two matters. First, as indicated by the [suppressed]. Whilst these factors, as Dr A points out, do not eliminate the risk, they go some way to reducing it. 71Second, I doubt if the orders, even if made, would have very great utility. There has already been a degree of publicity surrounding the proceedings and disclosure of the subject matter of the proceedings without disclosure of the identity of the parties would not seem to me likely to generate any greater discussion than that which has already occurred. 72In these circumstances, I am not satisfied that the orders sought by the applicants are necessary to protect X's safety. It follows that leave to appeal should be granted but the appeal dismissed 73After writing the above, the Court was informed that the related proceedings had been settled. 74In those circumstances McColl JA directed the parties to file written submissions addressing the following issues: (1) Whether, having regard to the settlement, there continues to be a legal controversy before the Court. (2) Whether, in light of the settlement, the orders the appellants seek are necessary to protect X's safety. (3) What, in light of the settlement, should be the duration of any orders the Court might make having regard to the provisions of s 12 of the Act. (4) What, if any, suppression orders or restrictions ought to be made in relation to any judgment the Court of Appeal may deliver in the matter in relation to X's identity both generally and in relation to any particular respondents. 75The parties filed written submissions in compliance with those directions. 76It appears from those submissions that on 22 August 2012 judgment was entered against D1 in each of the related proceedings and a Notice of Discontinuance as to all claims for relief concerning D4-D14 was filed in each of the related proceedings. Contrary to the earlier advice to the Court however, the submissions advised that the proceedings against D3 remain on foot. 77Each of the parties agreed that a legal controversy remained before the Court. The applicants said such a controversy remained because at least the intervenor, Fairfax Media Publications Limited, opposed the making of the orders and because the orders were sought to protect the safety of X, which remained a live issue. The respondent submitted that there remained a controversy for the additional reason that the proceedings against D3 remain on foot. 78The intervenor submitted that there remained a controversy as to whether the orders of Fullerton J were sufficient in the circumstances save for amendments of the dates and aspects which are no longer necessary having regard to the settlement. 79In my opinion, the parties were correct in conceding that a controversy remained on foot. The controversy, namely whether orders should be made under the Act to protect the safety of X and the extent of those orders remains notwithstanding the partial settlement of the proceedings. Further, to the extent that the continuation of the proceedings is relevant to that issue, the related proceedings have in fact not yet concluded because of the continuing action against D3. 80I should add that none of the parties to the proceedings submitted that s 7 of the Act did not confer jurisdiction on the Court to make an order of the nature sought or addressed any submissions as to the meaning of the expression "proceedings before the court" in that section. 81The applicants further submitted that the orders sought remain necessary to protect X's safety notwithstanding partial settlement of the proceedings. Reliance was place in particular on the reports of Dr A and Dr B, to which I have referred above, in relation to the effect of publication on X's mental health. It was submitted that that evidence was not contingent on the proceedings in fact continuing. The respondents simply maintained the submissions made by them on the hearing of the appeal whilst the intervenor took the position that the orders made by Fullerton J remained appropriate to protect X notwithstanding the settlement of the proceedings. 82So far as the duration of the orders sought was concerned, the applicants submitted that having regard to the medical evidence the orders should continue to operate for at least 12 months from the date of any orders made by this Court, with provision to be made to permit any application to extend the duration of such orders. As an alternative the applicants suggested that the Court may determine that the matter should be reviewed periodically with the Court receiving updated evidence of X's condition. 83On this issue each of the respondents and the intervenor said the settlement should have no bearing on what the Court considers the appropriate duration of any order. 84The orders made by Fullerton J prohibiting the disclosure of the identity of D3-D14 were limited to extend to 3 August 2012 (see in particular Orders 2 and 6 of the orders made by the primary judge). It seems to me appropriate in all the circumstances that these orders be extended beyond that date. There is nothing to suggest that the risk posed to the safety of X by the publication of the identity of the parties would have expired by 3 August 2012. 85However, I do not consider it appropriate to extend the orders for a further period of 12 months or to extend them indefinitely but require updated evidence as to whether or not they continue to be necessary. The latter course seems to me to be precluded by the provisions of s 12(1) of the Act which requires that the suppression order operate for a period decided by the Court and specified in the order. 86So far as the proposal to extend the orders for a further period of 12 months is concerned, I cannot be satisfied on the material before me that such an extension could be said to be reasonably necessary to achieve the purpose for which it is made as required by s 12(2) of the Act. However, doing the best I can in the circumstances of the present case, it would seem to me that it would be appropriate to extend the orders up to 29 March 2013 [suppressed]. Liberty, however, should be granted to any of the parties to apply to a judge of the Common Law Division for any orders varying that date, either shortening the period of extending it. It seems to me that this form of order can be made having regard to the provisions of s 12(3) of the Act. 87The fourth issue on which submissions were sought was on the question of what, if any, suppression orders or restriction ought be made in relation to any judgment the Court of Appeal may deliver in the matter in relation to X's identify both generally and in relation to any particular respondents. 88In this regard, the applicants submitted the suppression orders should be made in relation to those portions of any judgments that relate to X and X's particular circumstances even if X is only identified by pseudonym. The applicants suggested that a practical course may be to initially restrict publication of the whole of the content of any judgment to the legal representatives of the parties only and for the Court to receive submissions as to those parts of the judgment any party may seek to have suppressed or subject to a restriction on publication. The respondent's submissions did not deal with this question, whilst the intervenor indicated it did not oppose suppression of X's identity and any material relating to X's personal circumstances, including X's medical history. 89In those circumstances it seems to me appropriate to order that any publication of the judgment to persons other than the legal representatives of the parties thereto and the intervenor be suppressed for a period of 28 days but order that the applicant indicate within 10 days those parts of the judgment which they consider should be suppressed and the respondent and intervenor within 7 days thereafter indicate the extent to which they disagree with the orders sought. I should say, however, that in my opinion the only parts of the judgment or the schedules which should be suppressed are those portions which would tend to identify the plaintiffs and the defendants in the related proceedings, the identity of X, X's medical history and personal circumstances. 90I do not believe it is appropriate to make any order for costs of the appeal. Mr Sharpe, who appeared for the respondent, indicated that he was unable to obtain instructions from his clients and sought and was granted leave to appear as an amicus curiae. No orders for costs were sought by the intervenor. 91In these circumstances, in my opinion, the following orders should be made: (1) Leave to appeal be granted. (2) Direct the applicants to file the Notice of Appeal in the form of the draft in the White Book within 7 days. (3) Orders of Fullerton J made on 1 March 2012 be varied as follows: (i) By the substitution of 29 March 2013 for 3 August 2012 in pars [2] and [6] of her Honour's orders. (ii) By the addition of the following order: "Grant the parties and the intervenor, Fairfax Media Publications Pty Ltd, liberty to apply to a judge of the Common Law Division to vary the expiry date contained in Orders 2 and 6 of her Honour's orders." (4) Appeal otherwise dismissed. (5) Order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 prohibiting the publication or other disclosure of this judgment and the schedules thereto for a period of 28 days from the date hereof. (6) Direct the applicants within 10 days indicate which part of the judgment and the schedules thereto should continue to be subject to a suppression order following the expiration of the 28 days referred to in Order (5) above. (7) Direct the respondent and Fairfax Media Publications Pty Limited indicate within a further period of 7 days the extent to which they contend those portions of this judgment which the applicants seek to have suppressed beyond the period referred to in Order (5) should not be so suppressed. 92McCOLL JA: I agree with Bathurst CJ. 93McCLELLAN CJ at CL: I agree with the Chief Justice. ********** SCHEDULE 1[Restricted to the legal representatives for the parties]. 2[Restricted to the legal representatives for the parties]. 3The orders in paragraphs 1 and 2 above are to apply subject to the following exceptions: a)Any subpoena for production, in which it is reasonably necessary to identify the parties nominated in Order 1 or 2 by their name, provided that a copy of these orders is provided to any person or entity to be served with a subpoena for production. b)Confidential communications between the legal representatives for the parties, in which it is reasonably necessary to identify the parties in Orders 1 and 2 by their true name. c)Communications necessary for the conduct of the prosecution or of the defence of the proceedings between the legal representatives for the parties and any party, witness or other person(s), in which it is reasonably necessary to identify the parties in Orders 1 and 2 by their true name, provided that: i.all such communications are conducted on a strictly confidential basis; and ii.a copy of these orders is provided to any witness or other persons(s) with whom such communications are conducted. 4Until further order, an order prohibiting the disclosure (by publication or otherwise), including to the plaintiffs, my reasons for judgment and of any evidence given, or submission made in support of the application, and the contents of any document filed, served or tendered in connection with the application (including any schedule, annexure or exhibit thereto), save insofar as the same is reproduced in these reasons for judgment. 5Until further order, an order that all affidavits read, and any document filed, served or tendered in connection with this application (including any schedule, annexure or exhibit thereto, and any written submission) be treated as confidential in the Court file, and placed in a sealed envelope, only to be opened on the order of a judge of this Court. 6[Restricted to the legal representatives for the parties]. 7The orders in paragraphs 4, 5 and 6 above are to apply subject to the following exceptions: a)Any subpoena for production in which it is reasonably necessary to disclose that information provided that a copy of these orders is provided to any person or entity to be served with a subpoena for production. b)Confidential communications between the legal representatives for the parties in which it is reasonably necessary to disclose that information. c)Communications necessary for the conduct of the prosecution or of the defence of the proceedings, between the legal representatives for the parties and any party, witness or other person(s), in which it is reasonably necessary to disclose that information provided that: i.all such communications are conducted on a strictly confidential basis; ii.a copy of these orders is provided to any witness or other persons(s) with whom such communications are conducted. 8Until further order, an order that seven days notice be given to the solicitors for the parties, by any non-party, of any application to be made by the non-party to access the Court file. 9That the Registrar notify the parties of any application made in accordance with Practice Note SC General 2 for access to material held by the Court, before dealing with 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: 21 December 2012