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 Judgment 1BATHURST CJ: On 28 September 2012 the Court delivered judgment in this matter and made an order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 ("the Act"), prohibiting the publication or disclosure of the judgment for a period of 28 days from the date of delivery. The Court directed that each party make submissions as to what part of the judgment and the schedules thereto should be subject to a suppression order following the expiration of the 28 day period. On 1 November 2012, due to the expiry of the 28 day period, a further order pursuant to s 7 of the Act was made, prohibiting publication or disclosure of the judgment until further order. 2In the judgment which I delivered on that day, I concluded that it was not appropriate to extend the orders made by Fullerton J to include an order prohibiting the disclosure of the existence or subject matter of the subject matter of proceedings 2009/00297873 (the "related proceedings"), as this was not necessary to protect the safety of the person said to be affected by publication of the existence of the proceedings or the identification of the parties thereto. I will refer to that person as "X". 3However, I agreed that it was appropriate, subject to certain minor variations, to continue the orders made by Fullerton J, which effectively prohibited publication of material that would identify the parties to the related proceedings, or X. 4McColl JA and McClellan CJ at CL agreed with the orders which I proposed and the reasons for making them. 5Pursuant to the order made by the Court, the applicants and intervenor, Fairfax Media Ltd, produced schedules as to which part of the judgment and attached schedules should continue to be suppressed. There has been a substantial measure of agreement, and to the extent that the parties have disagreed, I deal with this below. 6However, notwithstanding the agreement between the parties, it is my view that the Court has to determine for itself whether the proposed redactions to the judgment should be the subject of a suppression order, having regard to the provisions of ss 7 and 8 of the Act and in particular the emphasis in s 6 of the Act on the need to safeguard the public interest in open justice. This is particularly so in a case such as the present, where the agreed proposed redactions are so substantial as to render the judgment relatively meaningless. The parties suggested that this could be overcome by effectively rewriting the judgment. I do not think this is appropriate in relation to a judgment which has been formally delivered. The passage in Gypsy Jokers Motorcycle Club Incorporated v The Commissioner for Police [2008] HCA 4; (2008) 234 CLR 532 at [40], cited by the applicant as authority for the power to do so, seems to me to contemplate a reformulation of reasons prior to delivery of the judgment and not the situation in the present case. Problems associated with publishing a judgment with significant redactions were discussed by the Full Court of the Federal Court in Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 317 in the following terms, with which I agree: "In deference to the claims for confidentiality, the trial judge felt constrained to issue an expurgated version of his reasons, for a general audience, from which all citations from the "confidential" documents were omitted. That version lacked both basic information and intelligibility; it is reported, Trade Practices Commission v Arnotts Ltd (1990) 93 ALR 657. It is not until one reads the unexpurgated version that one can gain any real understanding of his Honour's findings of fact or processes of reasoning. We do not know what their reactions were, but it would be understandable if the executives of Arnotts felt aggrieved at being denied an intelligible explanation of their loss of an important case upon which their company must have spent millions of dollars. Furthermore, the general community has an interest in knowing the reasons for the outcome of a major case affecting many people outside Arnotts and into which substantial public funds have been poured." 7Although the redactions I have made are significant, in my view the redacted judgment is intelligible as to the critical matters of principle which underpinned resolution of the controversy. 8I turn now to the particular paragraphs of the judgment in respect of which a suppression order under the Act was sought. 9Paragraph [3] - The parties agreed that the second sentence should be suppressed. This seems to me to be consistent with the orders made by the Court on 28 September 2012 and the sentence should remain suppressed for at least a further limited period. The intervenor, however, did not agree with the applicants that the final sentence of that paragraph should be suppressed. I agree with the intervenor that suppression of that sentence is not necessary to protect the safety of X. 10Paragraph [4] - The parties agreed that the whole of the paragraph after the word "on", where it appears for the second time in the first sentence, should be suppressed. In my opinion this is consistent with the orders made on 28 September 2012 but rather than merely suppressing the balance of the second sentence of that paragraph, the pseudonym X should be substituted for the description used. 11Paragraph [6] - The applicants submitted that the words "and made certain other orders prohibiting disclosure of the allegations", down to the word "at least" should be suppressed. The intervenor contended that the suppression should be limited to the words appearing between the word "allegations" and the words "at least" in that paragraph. I agree with the intervenor that there is no reason to suppress the words "and made certain other orders prohibiting disclosure of the allegations". 12Paragraph [7] - The applicants submitted that the whole of the paragraph after the words "primary judge" in the second sentence should be suppressed. The intervenor submitted that if the pseudonym X was substituted for the pseudonym in the judgment there was no need for further suppression. I agree with the intervenor. Once that substitution is made there is no reason for the suppression of any part of the paragraph to protect the safety of the person affected. Although the intervenor suggested that the word "his" in the last sentence should be changed to "their", in my opinion there is no need to make such an order. 13Paragraph [8] - The parties have agreed that the whole of this paragraph with the exception of the words "the primary judge noted at the time of the hearing before her" should be suppressed. This seems to me consistent with the reasons for the orders made on 28 September 2012 and I would be prepared to make such an order. 14Paragraph [9] - The parties were in agreement that the first sentence of par [9] after the word "that" should be suppressed. However, if the pseudonym X is substituted for the pseudonym used there does not seem to me to be any reason to make such an order to protect the safety of the person affected. The parties were agreed that the second sentence with the exception of the words "the primary judge noted that" should be suppressed. This does seem to me consistent with the reasons for the orders made on 28 September 2012 and I would be prepared to make that order. However, there does not seem to me to be sufficient justification to delete any part of the last sentence of par [9] providing the pseudonym X is substituted. 15Similarly I do not think there is any justification for the suppression of any part of the chapeau to par [10], provided the pseudonym X is substituted. 16The suppression of the material in subpars (a)-(e) of par [10], which is agreed to by both the applicant and the intervenor, seems to me appropriate. 17The proposed redaction in par [11], namely, the whole of the paragraph with the exception of the first sentence, would tend to identify the persons mentioned and in those circumstances it is appropriate that it be suppressed. 18Providing the pseudonym X is substituted for the pseudonym used in the judgment in par [12] there seems to me to be no reason to make an order suppressing any part of that paragraph. 19The parties agreed to the redaction of that part of the first sentence following the words "she was satisfied" and the whole of the second sentence after the word "between" in par [13]. I agree that this falls within the reasons for the orders made on 28 September 2012 and I would be disposed to make such an order. 20Paragraph [14] sets out par [70] of the judgment of Fullerton J. That judgment is the subject of a suppression order, until further order. It seems to me that if the pseudonym X is substituted for the pseudonym in the judgment, there is no reason to continue to suppress the first or final sentences of par [70] of her Honour's judgment. However, suppression of the balance of that paragraph is consistent with the reasons for the orders made on 28 September 2012, which included affirming Fullerton J's order that publication of her reasons be suppressed until further order. 21Paragraph [15] of the judgment sets out the Draft Notice of Appeal filed by the applicants. Each of the parties suggested that certain portions of par [2] of the Draft Notice of Appeal be suppressed. I agree with the Intervenor that only that portion of paragraph [2] of the Draft Notice of Appeal following the words "will operate as a psychological stressor for X" should be suppressed. All of subparagraph [3](b) following the word "trigger(s)" should be suppressed, as should all of subparagraph [3](c) following the phrase "between publication in the press and". It seems to me that providing the pseudonym X is substituted for the pseudonym used, there is no need for any part of par [1] of the Draft Notice of Appeal to be suppressed. 22The parties sought suppression of the whole of par [6] of the Draft Notice of Appeal after the words "Her Honour misapprehended the evidence of". It seems to me that if the identity of the doctor concerned is suppressed and the pseudonym used in the Draft Notice of Appeal for the person affected is changed to X, the only part of paragraph [6] of the Draft Notice of Appeal that need be suppressed is the portion from the words "X will self-inflict further" through to the words "with the event of X learning". The doctor concerned can be referred to as Doctor A. 23Similarly, the persons referred to in pars [7] and [8] of the Draft Notice of Appeal can be referred to by pseudonyms. As noted, the Doctor referred to in paragraph [7] should be referred to as Doctor A. The persons identified in par [8] of the Draft Notice of Appeal can be referred to as Doctor B, Doctor C and X's mother respectively. 24Subparagraph [9](a) of the Draft Notice of Appeal should be suppressed. There does not seem to me to be any reason to suppress any other part of par [9] of the Draft Notice of Appeal, provided X is substituted for the pseudonym there used. 25The parties have agreed that the balance of the second sentence of paragraph [16] following the words "parties to those proceedings will" should be suppressed, as should all of the third sentence of that paragraph following the words "in the context". I agree that this is consistent with the reasons for judgment of 28 September 2012. 26The parties have agreed that the whole of par [18] with the exception of the opening words "So far as grounds 2 and 3 were concerned the applicants emphasise that their case was not that" should be suppressed. I agree that this falls within the terms of the reasons for judgment of 28 September 2012. For similar reasons I would be prepared to make an order suppressing par [19], with the exception of the words "in support of that proposition they stated the evidence demonstrated a". 27The material in pars [20], [21], [22], [23], [24] and [25] which the parties have agreed should be the subject of a suppression order does seem to me to tend to identify both the parties to the related proceedings and the person affected. In these circumstances I would be prepared to make the order sought in relation to these paragraphs, save that the final sentence of par [24] need not be suppressed and that where the parties have suggested the deletion of the names of Doctor A, Doctor B, Doctor C and X's mother, those individuals should instead be identified by the pseudonyms I have proposed. 28There does not appear to me to be any reason to suppress any part of par [28] providing pseudonyms are used for the persons there referred to. 29The portions of pars [29], [30] and [31] which the parties are agreed should be suppressed seem to me to have the tendency to identify the person affected and the parties to the related proceedings. In those circumstances I would be prepared to make such an order, save that the persons mentioned should be identified by pseudonyms, rather than mention of them being deleted. 30So far as par [32] is concerned, if the pseudonym X is substituted for the pseudonym used, there seems to me to be no reason to suppress any part of that paragraph. 31The material sought to be suppressed in par [35] could have the effect of identifying the affected person and the parties to the related proceedings. The doctor identified in that paragraph can be referred to as "Doctor D". I would otherwise be prepared to order the suppression of that part of the paragraph sought to be suppressed by the parties. 32So far as pars [37] and [39] are concerned, provided the pseudonym X is substituted for the pseudonym used, there does not seem to be any reason to make a suppression order in respect of any portion of those paragraphs. 33Likewise, if the pseudonym X is substituted for the pseudonym used in par [47] there is no need for suppression of any part of that paragraph. 34The only part of par [52] that need be suppressed is that part of the second sentence between the words "occurred in" and "and where there has already been publicity". There is no reason, in my opinion, for any part of par [53] to be suppressed. Similarly, there is no reason for par [56] to be suppressed, although Schedule 2, which would identify the person affected, should be suppressed. Paragraph [57] and the material upon which it is based should be suppressed as it would identify the person affected. 35If the pseudonym X is substituted for the pseudonym used in par [58], there is no reason to suppress any part of that paragraph. The material in pars [59], [60], [61], [62], [63], [64], [65] and [66] would have the tendency to identify the person affected and in those circumstances I am prepared to make the suppression order sought by the parties. 36The parties have agreed that the whole of par [67] should be suppressed. In my opinion, this is not appropriate. It seems to me that if the doctors there identified are referred to by the pseudonyms that I have proposed all that needs to be suppressed of the first sentence is that part commencing after the words "the most recent reports of Drs A and C" down to the words immediately preceding the words "do not go so far". I agree that it is appropriate to make a suppression order in relation to the balance of the paragraph. 37In par [68] the pseudonym X should be substituted for the pseudonym used. If a similar substitution is made in par [69] there is no need to suppress any part of that paragraph. 38I agree with the parties that the second sentence of par [70] would tend to identify the person affected and should be suppressed. However it seems to me that there is no need to suppress the third sentence of that paragraph, so long as the doctor identified is referred to by the pseudonym I have proposed. 39I would be prepared to make an order substituting the pseudonym X for the pseudonym used in pars [72], [74], [77] and [79]. 40So far as par [81] is concerned, providing the pseudonym X is used rather than the pseudonym used in the judgment and pseudonyms are used to identify the doctors concerned, there seems to me to be no reason to make any suppression order in respect of this paragraph. 41So far as par [82] is concerned, if the pseudonym X is substituted for the pseudonym used in this paragraph, there is no need to make any suppression order. 42A similar change in pseudonym should be made in par [84]. 43I would be prepared to make an order suppressing the material in par [86] in the terms sought by the parties, as this may have the tendency to identify the person affected. 44The pseudonym X should be substituted for the pseudonym used in the judgment in pars [87], [88] and [89]. 45So far as Schedule 1 of the judgment is concerned, the applicants sought an order that the whole of the judgment be suppressed or alternatively, that publication of Orders 1, 2 and 6 set out in Schedule 1 should be restricted to the legal representatives for the parties and media outlets though the Court's Public Information Officer only. It does not seem to me appropriate to suppress the whole of the Schedule. However Orders 1, 2 and 6 do have the tendency to identify the affected person and the parties to the proceedings. Accordingly, an order in the alternative form sought by the applicants should be made. 46Schedule 2, which contains details of the affected person's medical history, should be subject of a suppression order. 47To avoid any confusion on this issue there is attached as a Schedule to this judgment, the judgment of 28 September 2012 in redacted form taking into account those portions which I have said should be suppressed. 48It seems to me that indefinite non-publication of the original judgment is both unnecessary and undesirable. In these circumstances, consistent with the other orders made on 28 September 2012, the order suppressing the whole judgment should only extend up to and including 29 March 2013, unless a further extension of the order is granted on an application made before that date. 49Since delivery of the primary judgment on 28 September 2012, it has been drawn to my attention that the orders of Fullerton J of 1 March 2012 may no longer be on foot, having regard to further orders made by her Honour on 5 March 2012. It is also at least open to debate that some orders made by Hidden J in the proceedings also remain on foot. 50The intention of the orders of 28 September 2012 was to ensure that the only orders extant were those of Fullerton J of 1 March 2012, varied as proposed in Order 3 of the orders made on 28 September 2012. To the extent that the orders did not do so, this was an error that can be corrected pursuant to UCPR r 36.17. To avoid any further confusion, it seems to me that the appropriate course would be to vacate all orders previously made by Fullerton J and Hidden J in relation to this application, and for the Court to pronounce its own orders, consistent with the orders of Fullerton J of 1 March 2012 as varied by the orders made on 28 September 2012. 51In these circumstances the following orders should be made: (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. 52MCCOLL JA: I agree with Bathurst CJ. 53MCCLELLAN CJ at CL: I agree with the Chief Justice. ********** 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