D1 v P1 (No 2) [2012] NSWCA 440

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: D1 v P1 (No 2) [2012] NSWCA 440 Hearing dates: 30 March 2012 Decision date: 21 December 2012 Before: Bathurst CJ at [1]; McColl JA at [52]; McClellan CJ at CL at [53] Decision: 1. Order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010, prohibiting the publication or disclosure of the Court's judgment of 28 September 2012 in this matter, except to the extent contained in the redacted judgment which is a Schedule hereto, on the ground that the order is necessary to protect the safety of the person referred to as X in this judgment. 2. Order 1 to remain in force only up to and including 29 March 2013, unless an extension is granted on an application made prior to that date. 3. Orders of Fullerton J of 1 March 2012 and 5 March 2012 vacated. 4. Orders of Hidden J of 25 July 2011 vacated. 5. [Restricted to the legal representatives for the parties]. 6. [Restricted to the legal representatives for the parties]. 7. The orders in paragraphs [5] and [6] 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 5 or 6 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 5 and 6 by their true names. (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 5 and 6 by their true names, provided that: (i) all such communications are conducted on a strictly confidential business; and (ii) a copy of these orders is provided to any witness or other person(s) with whom such communications are conducted. 8. Until further order, an order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 prohibiting the disclosure (by publication or otherwise), including to the plaintiffs, of the judgment of Fullerton J of 1 March 2012, except for the first and final sentences of paragraph 70 of her Honour's judgment, in the terms set out in paragraph 20 of this judgment, on the ground that the order is necessary to protect the safety of the person referred to as X in this judgment. 9. Until further order, an order prohibiting the disclosure (by publication or otherwise), including to the plaintiffs, of any evidence given, or submission made in support of the applications before Fullerton J or this Court, and of the contents of any document filed, served or tendered in connection with those applications (including any schedule, annexure or exhibit thereto), save insofar as the same is reproduced in the reasons for judgment of Fullerton J of 1 March 2012, or of the Court of 28 September 2012, on the ground that the order is necessary to protect the safety of the person referred to as X in this judgment. 10. Until further order, an order that all affidavits, read and any document filed, served or tendered in connection with the applications before Fullerton J or this Court (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. 11. [Restricted to the legal representatives for the parties]. 12. The orders in paragraphs 8, 9, 10 and 11 above are to apply subject to the following exceptions: (a) Any subpoena for production in which it is reasonably necessary to disclose the 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 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 person(s) with whom such communications are conducted. 13. Until 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. 14. That 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. 15. 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, 6 and 11 above. [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: PROCEDURE - interlocutory issues - suppression orders - order granted to extent "necessary to protect the safety of any person" - Court Suppression and Non-publication Orders Act 2010 (NSW), s 7 Legislation Cited: Court Suppression and Non-publication Orders Act 2010 s 6, s 7, s 8 Cases Cited: Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 Gypsy Jokers Motorcycle Club Incorporated v The Commissioner for Police [2008] HCA 4; (2008) 234 CLR 532 Category: Procedural and other rulings 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: No 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