Supreme Court New South Wales Medium Neutral Citation: Jane Doe v Fairfax Media Publications Pty Limited & Anor [2018] NSWSC 1996 Hearing dates: 26 February - 1 March 2018 Decision date: 21 December 2018 Jurisdiction: Common Law Before: Fullerton J Decision: 1. Verdict for the defendants. 2. The plaintiff is to pay the defendants' costs. Catchwords: STATUTORY INTERPRETATION - Crimes Act 1900 (NSW) s 578A - meaning of the word "likely" - "real and not remote" chance, or more probable than not. STATUTORY INTERPRETATION - Crimes Act 1900 (NSW) s 578A - whether mens rea required or whether offence is an offence of strict liability STATUTORY INTERPRETATION - Crimes Act 1900 (NSW) s 578A - whether breach of s 578A confers a cause of action for damages for breach of statutory duty - constituent elements of an action for damages for breach of statutory duty - legislative intention to confer private right to sue for damages EQUITY - claim for equitable compensation for breach of confidence - identification of the confidential information - whether the information had the necessary "quality of confidence" - whether the information was imparted in circumstances importing an obligation of confidence. Legislation Cited: Casino Control Act 1922 (NSW) Children (Care and Protection) Act 1987 (NSW) Children (Criminal Proceedings) Act 1987 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Children and Young Persons Act 1989 (Vic) Children's Court of Western Australia Act 1988 (WA) Civil Liability Act 2002 (NSW) Corporations Act 1989 (Cth) Crimes (Personal and Family Violence) Amendment Bill 1987 (NSW) Crimes (Serious Sex Offenders) Act 2006 (NSW) Crimes Act 1900 (NSW) Criminal Code Act 1924 (Tas) Criminal Procedure Act 1986 (NSW) Dangerous Goods Regulation 1978 (NSW) Evidence Act 1929 (SA) Evidence Act 1995 (NSW) Industrial Relations Act 1988 (Cth) Judicial Proceedings Reports Act 1958 (Vic) Liquor Act 1912 (Qld) Overhead Line Construction Maintenance Regulations 1962 (NSW) Scaffolding and Lifts Act 1912 (NSW) Serious Sex Offenders Monitoring Act 2005 (Vic) Strata Titles Act 1973 (NSW) Taxation Administration Act 1963 (Cth) Wrongs Act 1958 (Vic) Cases Cited: Alan Belford Jones; Harbour Radio Pty Ltd; Nationwide News Pty Ltd v R [2008] NSWDC 8 Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209 Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWCA 430; (2012) 295 ALR 348 Attorney General (NSW) v Winters [2007] NSWSC 1071 Attorney General v Greater Manchester Newspapers (Unreported, England & Wales High Court, Queen's Bench Division, Dame Elizabeth Butler-Sloss P, 4 December 2001) Attorney-General for the State of New South Wales v Winters [2007] NSWSC 1071 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 Australian Securities Commission v Nomura International PLC (1998) 89 FCR 301 Bailey v Hinch [1989] VR 78 Boughey v R (1986) 161 CLR 10; [1986] HCA 29 Briffett v Crown Prosecution Service [2001] EWHC Admin 841; [2002] EMLR 12 Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24 Channel Seven Adelaide Pty Ltd v Stockdale-Hall [2005] SASC 307 Chugg v Pacific Dunlop Limited (1990) 170 CLR 249 Commissioner of Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5 David Syme & Co v Canavan (1918) 25 CLR 234; [1918] HCA 50 Gardiner v State of Victoria [1999] VSCA 100 Giller v Procopets [2008] VSCA 236; (2008) 24 VR 1 Griffin v Marsh (1994) 34 NSWLR 104 Hawthorne (Department of Health) v Morcam Pty Ltd (1992) 29 NSWLR 120 He Kaw Teh v The Queen (1985) 157 CLR 523 Howe v Harvey (2008) 20 VR 638; [2008] VSCA 181 Jane Doe v Australian Broadcasting Commission [2007] VCC 281 Jane Doe v Fairfax Media Pty Ltd [2016] NSWSC 1294 JD Bell (Calool) Pty Ltd v Shortland County Council (1991) 74 LGRA 398 Johns v Australian Securities Commission (1993) 178 CLR 408; [1993] HCA 56 King v Goussetis (1986) 5 NSWLR 89 Lubrano v Proprietors of Strata Plan No 4038 (1993) 6 BPR 97 Marshall v Prescott [2015] NSWCA 110 Martin v Western District of Australasian Coal and Shale Employees Federation (1934) 34 SR (NSW) 593 McDonald (t/as BE McDonald Transport) v Girkaid Pty Ltd [2004] NSWCA 297 Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 Missingham v Shamim [2012] NSWSC 288 Nakhl Nasr v State of New South Wales; George Nasr v State of New South Wales [2007] NSWCA 101 O'Connor v SP Bray Ltd (1937) 56 CLR 464; [1937] HCA 18 O'Riordan v The Director of Public Prosecutions [2005] EWHC 1240 Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21; 265 ALR 28 Preston v Star City Pty Ltd [1999] NSWSC 1273 Proudman v Dayman (1941) 67 CLR 536; [1941] HCA 28 R v Lindsay Ronald Jensen [2007] NSWDC 15 R v Lindsay Ronald Jensen, District Court, Murrell DCJ, 18 December 2006 R v W [1998] 1 NZLR 35 R v West Australian Newspapers Ltd, Ex Parte Keating on behalf of the Attorney-General for Western Australia (Full Court of the Supreme Court of Western Australia, 19 June 1997, unreported) Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 RJE v Secretary to the Department of Justice (2008) 21 VR 526; [2008] VSCA 265 Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157 Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1990) 22 FCR 73 Soutter v P&O Resorts Pty Ltd [1998] QCA 051; [1999] 2 QdR 106 Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397; [1967] HCA 31 Streetscape Projects (Australia) Pty Ltd v City of Sydney [2013] NSWCA 2 Tillman v Attorney General (NSW) (2007) 70 NSWLR 448; [2007] NSWCA 327 Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331 TSL v Secretary to the Department of Justice (2006) 14 VR 109; [2006] VSCA 199 Von Lieven v Stewart (1990) 21 NSWLR 53 Waters v Pacific Publications Pty Ltd [1999] NSWSC 366 Waugh v Kippen (1986) 160 CLR 156 Western Australia v West Australian Newspapers Ltd and Anor; ex parte James Andrew McGinty MLA, Attorney General for Western Australia (2005) 30 WAR 434; [2005] WASCA 161 Whittaker v Rozelle Wood Products Ltd (1936) 36 SR (NSW) 204 X v Bedfordshire County Council [1995] 2 AC 633 XX v Nationwide News Pty Ltd [2010] NSWDC 147 Texts Cited: Gatley on Libel and Slander (12th ed, 2013) Category: Principal judgment Parties: Jane Doe (Plaintiff) Fairfax Media Publications Pty Limited (First Defendant) Michael Bachelard (Second Defendant) Representation: Counsel: K Smark SC / S Chrysanthou (Plaintiff) P Gray SC / L Barnett (Defendants) Solicitors: Mark O'Brien Legal (Plaintiff) Banki Haddock Fiora (Defendants) File Number(s): 2016/278384 Judgment 1. HER HONOUR: By Statement of Claim dated 16 September 2016 the plaintiff seeks an order for damages, including aggravated and exemplary damages, for breach of a statutory duty said to be conferred by s 578A of the Crimes Act 1900 (NSW), by the publication of two articles in the Sydney Morning Herald and on the website associated with that newspaper on 17 and 18 June 2016 (respectively, the first and second publication of the articles). The first defendant is the publisher of the newspaper in its paper and digital format. The second defendant is a journalist employed by the first defendant and the author of the articles. At the time of the hearing, the digital version of the article remained available for download although part of the article, as originally published, has been redacted. 2. The first and second articles, entitled respectively "Secrets of the Brethren" and "Tony McCorkell Reveals Secrets of the Wealthy Christian Sect Exclusive Brethren", reference the Royal Commission into Institutional Responses to Child Sexual Abuse ("the Royal Commission") and, in that context, the sexual abuse of the plaintiff and her sister by Mr Lindsay Jensen, a senior member of the Plymouth Brethren Christian Church ("the Plymouth Brethren"), as examples of the sexual abuse of some children born into the Church and the efforts to conceal the abuse by the Church hierarchy. 3. The plaintiff also seeks equitable compensation for what she contends is a breach of confidence owed to her by the defendants by the publication of the articles, and declaratory relief for breach of a suppression (non-publication) order made by Knight DCJ on 13 April 2007 following the trial of Mr Jensen on sexual assault charges in which the plaintiff was the complainant. 4. The plaintiff commenced the proceedings by the pseudonym "Jane Doe" (Jane Doe v Fairfax Media Pty Ltd [2016] NSWSC 1294). To preserve her anonymity, the witnesses upon whose evidence she relied will be referred to according to their relationship to her or by their initials, or both. The proceedings in summary Breach of statutory duty 1. The plaintiff submitted that while s 578A of the Crimes Act makes no express provision for a complainant who is identified by the publication of identifying material to bring a civil action for damages, the principles of statutory construction dictate that a right of action should be inferred. The plaintiff placed particular reliance upon the decision of Hampel J in Jane Doe v Australian Broadcasting Commission [2007] VCC 281, which although having no precedential force, was said by the plaintiff to reflect an orthodox application of the principles of statutory construction to s 4(1A) of the Judicial Proceedings Reports Act 1958 (Vic), a provision directed to achieving the same policy outcomes as s 578A of the Crimes Act, although expressed in different terms. 2. Section 578A of the Crimes Act provides as follows: (1) In this section: "complainant" has the same meaning as in Division 1 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986 . "matter" includes a picture. "prescribed sexual offence" has the same meaning as in the Criminal Procedure Act 1986 . "publish" includes: (a) broadcast by radio or television, or (b) disseminate by any other electronic means such as the internet. (2) A person shall not publish any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant. Penalty: In the case of an individual--50 penalty units or imprisonment for 6 months, or both; in the case of a corporation--500 penalty units. (3) This section applies even though the prescribed sexual offence proceedings have been finally disposed of. (4) This section does not apply to: (a) a publication authorised by the Judge or Justice presiding in the proceedings concerned, (b) a publication made with the consent of the complainant (being a complainant who is of or over the age of 14 years at the time of publication), (c) a publication authorised by the court concerned under section 15D of the Children (Criminal Proceedings) Act 1987 in respect of a complainant who is under the age of 16 years at the time of publication, (d) an official law report of the prescribed sexual offence proceedings or any official publication in the course of, and for the purposes of, those proceedings, (e) the supply of transcripts of the prescribed sexual offence proceedings to persons with a genuine interest in those proceedings or for genuine research purposes, or (f) a publication made after the complainant's death. (5) A Judge or Justice shall not authorise a publication under subsection (4) (a) unless the Judge or Justice: (a) has sought and considered any views of the complainant, and (b) is satisfied that the publication is in the public interest. (6) The prohibition contained in this section applies in addition to any other prohibition or restriction imposed by law on the publication of any matter relating to prescribed sexual offence proceedings. (7) Proceedings for an offence against this section shall be dealt with summarily before: (a) the Local Court, or (b) the Supreme Court in its summary jurisdiction. (8) If proceedings for an offence against this Act are brought before the Local Court, the maximum penalty that the Local Court may impose on a corporation is 50 penalty units. 1. The defendants submitted that as a matter of statutory construction no private right to sue for breach of the statutory duty in s 578A is conferred. The defendants sought to distinguish the decision of Hampel J on a number of bases, not least that the decision reflected an erroneous approach to the construction question. The defendants submitted that the guidance that is afforded by a line of High Court authority, and the application of settled principles in a range of decisions at first instance and on appeal, including in this Court, will necessitate a finding that no civil right to sue is conferred from the terms of s 578A. 2. Fundamental to the success of the plaintiff's claim for common law damages for breach of the statutory duty in s 578A (assuming a right to sue is to be inferred) is her contention that the articles either identified her as a complainant in prescribed sexual assault proceedings (as defined in s 3 of the Criminal Procedure Act 1986 (NSW)) or was likely to lead to her identification as a person so described. The defendants submitted that even were the Court satisfied that a right to sue is conferred by the terms of s 578A, the plaintiff was neither identified nor likely to have been identified in either of the articles. The defendants further submitted that even if the articles did identify the plaintiff or were likely to do so, she had failed to establish that the publication of the identifying material was intentional and, because the Court would find that mens rea was a constituent element of the civil wrong upon which that claim for damages is based, her claim for damages would fail for that further reason. Breach of confidence and breach of suppression orders 1. With regard to the plaintiff's claim for equitable compensation for breach of confidence, the defendants deny the plaintiff was owed a duty of confidence such as would, or might, ground her claim for equitable relief and, further, even were they subject to any applicable duty or obligation of confidence, the publication of the articles did not constitute a breach of any such duty as nothing of a "confidential nature" was published. 2. Finally, the second defendant denied breach of the suppression (non-publication) order and submitted that even were breach established, declaratory relief should be refused in the exercise of the Court's discretion. Damages 1. The plaintiff's claim for common law damages for breach of statutory duty and her claim for equitable compensation for breach of confidence was ultimately advanced referable only to what she described as the hurt, distress, embarrassment, humiliation, shame and guilt she experienced as a result of the publication of the articles. Her claim for damages for psychiatric or psychological injury and economic loss were not pressed. The evidence 1. The plaintiff's affidavit of 27 March 2017 was read, subject to the defendants' objection to those paragraphs where she nominates a number of people (not otherwise called as witnesses) who told her they read the articles or one of them, subsequent to which they claim to have identified her as one of the children who had been sexually abused by Mr Jensen. In the course of the hearing I resolved the objection adverse to the plaintiff and her affidavit was amended accordingly. (The reasons for that ruling appear at [47] to [59].) 2. Affidavits from the following people were also read (again after amendment to reflect that ruling): the plaintiff's husband of 27 March 2017; TP (a relative, by marriage, of the plaintiff) dated 12 April 2017; JK (a family friend of the plaintiff) dated 13 April 2017; NK (a family friend of the plaintiff) dated 13 April 2017; AH (a former neighbour and now friend) dated 13 April 2017, and the plaintiff's general practitioner, Dr Hourigan, dated 13 April 2017. 3. The second defendant did not give evidence. He relied upon a number of documentary tenders, inclusive of extracts of a book he wrote entitled "Behind the Exclusive Brethren" first published in 2008 and subsequently in 2009 and 2010, and a number of newspaper articles where the Jensen trial was reported upon, all of which pre-date the articles the subject of these proceedings. The Articles 1. The print version of the article entitled "Secrets of the Brethren" was published in the Good Weekend magazine on 18 June 2016. The online article entitled "Tony McCorkell reveals secrets of the wealthy Christian Sect Exclusive Brethren", was published on the Sydney Morning Herald website on 17 June 2017. The content of the articles is identical. 2. The articles read as an exposé of the Plymouth Brethren as an insular Christian religious sect currently under the leadership of Mr Bruce Hales, the seventh leader of the Church founded in Plymouth, England, in 1829. As the second defendant described it in the article, the Brethren shun public scrutiny as surely as radios, TVs and voting are trappings of "worldly society". ("Worldly society" is the nomenclature used by the Brethren to refer to civil society). The article suggests that it is this edict that explains the preparedness of the Church, under the leadership of Mr Hales, to cover up sexual abuse of children by its members, and its determination to avoid public scrutiny of the sexual abuse of children within the Church and to conceal abuse notified to it. 3. The article draws heavily on the insights of Tony McCorkell who was born into the Church but who left as a child when his father was exiled. As a young adult Mr McCorkell returned to the Church (as he described it, to the dismay of his parents) and was subsequently engaged as a consultant to help to improve the Church's reputation and to defend it against accusations that it had ignored or concealed child sexual abuse by its members. Mr McCorkell also detailed occasions when, under orders from the Church hierarchy, he worked with leaders of the Church community to pay the expenses of victims in exchange for their silence. The article includes the following: In his three years, however, McCorkell personally "dealt with" six claims of child sexual abuse, and says now, "I can't prove it, but I'd say there's a lot more of it that we don't hear about." In each case, he says, the Brethren's preference was to keep the case in-house. Sometimes, acting on Hales's orders, McCorkell worked with local leaders to pay the bills of victims when they needed it, in return for their silence. Sometimes [Hales] dismissed their cases as a "family matter". Twice, as the media circled, he urged abusers to make admissions to police so the Church could be publicly seen to be doing the right thing. In each case, the priority was protecting what the Brethren calls "the position". This is a notion that refers both to the loyalty demanded of church members to its peculiar, separatist theology, and to Hales, as well as to the physical property and assets owned by the church. Easing the suffering of victims, many still locked with their abusers inside a claustrophobic, rule-bound community, came a distant second. 1. At the time he was interviewed by the second defendant, Mr McCorkell had severed all ties with the Plymouth Brethren. 2. The article goes on to refer specifically to "two sisters" who had been abused by Mr Lindsay Jensen and whose abuse the Church hierarchy had attempted to cover up. Mr Jensen was referred to as a church elder known to the Brethren for what was described in the article as his "lustfulness". The children are not named or described. It was common ground in the proceedings that the plaintiff and her younger sister are the "two sisters" referred to. The sexual abuse the plaintiff and her sister suffered whilst living at the home of the Jensens was not detailed or described in terms. What was made clear was that the home in which they were abused was where they had been sent by the Church after their father was exiled from the Church due to his homosexuality and after their mother was subsequently injured in an accident. 3. In the opening paragraph of the article the plaintiff's initial disclosure of the abuse and her subsequent forced retraction are set out as follows: Late one night, a frightened girl whispered a terrible secret into her mother's ear. It was about the man in whose house she was living – an elder of the Christian sect to which they all belonged. But if the girl thought telling her mum would make it stop, she had not reckoned on the power of the Exclusive Brethren. Just days after her disclosure in mid-2002, the girl's mother brought her back to the man's house in a NSW regional town. The elder's wife took the child into the room where it had happened. Then the interrogation began. For hours the woman questioned the little girl. She made her act out the attacks. "She wanted me to show her what [her husband] had done to me, she wanted me to demonstrate," the girl later told a judge. So long did it go on that the child's own mother left the room to sleep. Later still, the perpetrator himself, Lindsay Jensen – nearly two metres tall, weighing 100 kilograms, rich, pious, respected in his religious community – came in and confronted the girl himself. "My memory is that I said to [her], 'Just tell the truth … tell me what I am supposed to have done'," Jensen told a court in 2005. Finally, the girl relented to the pressure and signed a note on a little lined page saying that she had lied. "I have always thought of the relationship between Lindsay and I as a father/daughter relationship," she wrote in childish script, "and I was glad for it because I needed some sort of father. "The things that I said that happened, I don't believe they happened at all." 1. The note was tendered as part of Mr Jensen's defence in his criminal trial before Knight DCJ in 2005, marked as an exhibit and retained on the Court file before it was accessed by the second defendant. A photograph of the note in the Court file was also included in the articles with the plaintiff's name and her grandfather's name redacted. The publication of the photograph of this note is relied upon by the plaintiff in support of her claim for equitable compensation for breach of confidence. 2. Further into the article the second defendant refers to another note the plaintiff was forced to write: On plaint sheets of A4 paper on her court file, amid crossings-out and false starts, we can read how the girl was punished. Here is her written pledge to Jensen and his wife not to talk about "problems with me" to any body outside their family. Here is an account of her being teased by other Brethren children, and of Jensen's wife getting "cross with me and so did Lindsay". "I want to be different", the girl wrote, "and not cause trouble for people". Among her punishments, known as "consequences", was to copy out the "ministry" of a former Brethren leader on the subject of lies. "The Lord is getting rid of liars, one after another. He is just disposing of liars", the girl wrote out in June 2002. The punishments went on for months. Then in May 2003, a year after the girl's disclosure, her little sister whispered her own secret. Lindsay Jensen had also been sexually molesting her for well over a year: in the same bedroom where he had fondled her sister, and in his car as his own children slept. The only difference was that, in the later words of her older sister, the younger child's suffering had been "five times worse". Neither sister had known, nor spoken to the other about what had happened. The younger girl was not even 10. 1. While these handwritten notes were referred to in the article, they were not reproduced. The plaintiff does not complain that the quotation from these handwritten notes constituted a breach of confidence. 2. The article goes on to recount the events that followed the plaintiff's disclosure of the abuse to the authorities (described in the article as "the worldly authorities") and, after the criminal proceedings were initiated, how Mr McCorkell was enlisted by the Church to minimise the media's exposure of the Church and to deflect their attention from the proceedings, including by the threat of litigation. Finally, the article recounts the abuse the plaintiff and her sister suffered following their disclosure of the sexual abuse to the authorities and the culmination of the criminal proceedings against Mr Jensen: THE TWO young girls in the regional NSW town broke all the rules. They did something nobody had done before: they themselves reported to the "worldly" authorities what had happened to them. To the horror of Hales and the entire closed society, they pursued their complaints right through the court system. But the pressure on them was intense. After the younger sister had come forward, two senior Church women had interviewed them both: the elder girl once, the younger twice. They had been pressed for every detail, their stories relayed back to the Sydney leadership. According to McCorkell, this is where it would normally have ended: the perpetrator probably would have been "kicked out for immorality" for a short time and the girls "shipped off to the US [where they had relatives] and nobody would have been any the wiser". Instead, the girls' mother sought help from a non-Brethren counsellor. The counsellor notified the NSW Department of Community Services, which made its own inquiries. The mother was denounced immediately. "It would be better for a millstone to be hung around your neck and for you to be cast into the depths of the sea rather than go to the police," one woman told her. In August 2003, Jensen was "shut up" – excluded from Brethren society – over the allegations. Serious pressure immediately came from the local community to reinstate him. The girls were labelled "sinful liars". People threw rocks at them, egged their house. Groups of young men would bash or rock cars they were travelling in, or drive fast at them as they walked. An elder came from Melbourne specifically to yell at the girls' mother. It was a painfully public campaign. It often happened in the grounds of their church. Everyone, even the smallest boys, would taunt and torment the girls. No one stepped in to help them. The girls began avoiding the meetings, earning more rebukes. But still their mother refused to take their case to the police. "Throughout the discussions, [the mother] spoke of the influence the Church has on her life and that of her children," a social worker noted. "[She] stated, in front of both [girls], that she is of the belief that the law and legal system is something that you abide by but that you don't bring into your life even if the police are required. This is also the belief of the Church." Soon it became clear that Jensen would be reinstated to fellowship. The girls both wrote desperate letters to Bruce Hales, begging him not to do it: "I cannot understand why you are bringing Lindsay into fellowship because he has ruined me," the younger girl wrote. "She has lost faith in the Brethren," the elder girl wrote of her little sister. "She talks of … killing herself." In December 2003, Jensen was restored to the Church. In a timeline later produced by local Brethren and released by McCorkell, the Church said it was because there was "no substantial witness" to the assaults. Jensen promptly went to a meeting at the Brethren school, where he remained a trustee. The older girl saw him there. The message could not have been clearer: in this world, fatherless girls and husbandless women had no voice; and they would never report the matter to police. But, two days later, they did just that. Unlike the Brethren, the worldly authorities showed the girls kindness and respect. Even so, through the long hours spent making their statements, pursuant to the rules of their sect, both refused food and drink. More indignities were to come. Their police statements were distributed to the elders of the Church to scrutinise and judge. The Brethren briefed a law firm to wrest guardianship of the older girl away from her mother. A relative stole a passport from their house in an attempt to remove her overseas. The younger girl was nicknamed "Jezebel". Brethren surrounded her in public, chanting "Lindsay lover" and "harlot". She moved to another NSW town with her mother, but the stories followed her, and the bullying was unrelenting. She quit school and finished her education via correspondence. In 2005, Jensen faced trial in the case of the older girl. His defence relied in part on the coerced note she had signed. As her case was being heard, a supporter of Jensen made 11 violent threats, including bombings and assaults, against the victims and the court itself. Jensen and the "bomber" were both found guilty and jailed. In 2007, Jensen was sentenced to a second jail term, this time on five counts that included having sexual intercourse with a child under 10. In total, he was jailed for about four years. The Brethren promptly hired a lawyer in an attempt to have the evidence in the proceedings suppressed. Jensen still denies any wrongdoing and his wife has stuck by him. 1. It is the plaintiff's case that the articles identified her, or were likely to have led to her identification, as one of the two children sexually abused by Mr Jensen because of what were said to be the following particulars of identification in par 10 of the Statement of Claim: A. (i) The plaintiff grew up amongst the Brethren community in the regional town of Albury, New South Wales. (ii) The plaintiff has a younger sister who was nicknamed "Jezebel". (iii) The plaintiff's father ruled himself out of the Brethren community as he was gay and had left the plaintiff's mother for another man. (iv) Following her father's departure, the plaintiff (and her sister) went to live with Lindsay Jensen and were under his care. B. The following identifiers of the plaintiff were published in the first publication: (i) "The two young girls in the regional NSW town". (ii) "The girls own father had ruled himself out of their communion by committing the worst possible sin in brethren eyes – he was gay and had left their mother for another man". (iii) "She and her little sister were left on and off living in the house Lindsay Jensen". (iv) "The younger girl was nicknamed "Jezebel". Brethren surrounded her in public chanting "Lindsay lover" and "harlot". (v) "The younger girl was not even 10". (vi) The plaintiff's Note as published in the first publication referred to her relationship with Lindsay Jensen as a "father/daughter relationship", that Lindsay Jensen had "always been like a father" to her and that she needed "some sort of father". C. Further, the first defendant has published, and continues to publish online the article entitled "Sect man jailed for sex abuse of girl" dated 17 February 2007 in which it is stated that the sexual assault by Lindsay Jensen of his then nine year old victim took place in Albury. 1. It was common ground that the information in the articles was derived, in part, from material contained within the District Court file accessed by the second defendant under an order of the Registrar of the District Court on 7 January 2016 (see later at [36] and following). It was the defendant's case that it is also open to infer that in publishing the articles the second defendant also drew on other sources, including an interview with the children's father and other research. 2. The defendant submitted, correctly, that there was no evidence adduced at trial to support proof of 10A(ii), 10B(iv) or 10C. 3. In the plaintiff's outline of submissions it was submitted that the following "identifying facts about the plaintiff" were published. This was not the case the plaintiff alleged in the pleadings. There was no attempt to amend the pleadings to reflect the case outlined in submissions. (a) She was a member of the Exclusive Brethren when she was assaulted. (b) She was living in the house of the assailant when the assault occurred. (c) the assailant Lindsay Jensen was an elder of the Church; (d) she told her mother about the assaults in mid-2002.; (f) the plaintiff wrote a note saying she had lied about the assaults. (g) the plaintiff had a little sister, who was also sent to live with the Jensens. (h) the plaintiff's father was gay and left her mother for another man; (i) the plaintiff's mother was an alcoholic and used prescription drugs; (j) the plaintiff and her sister were neglected and had to steal food; (k) the plaintiff's younger sister, not even 10 at the time, was also molested; (l) the plaintiff and her sister were questioned by two senior Church women; (m) the plaintiff had relatives in the US; (n) the plaintiff's mother was denounced by the Brethren for speaking to the Department of Community Services. (o) the plaintiff's house was "egged" and rocks thrown at cars she was in; (p) an elder of the church from Melbourne came to yell at the plaintiff's mother. (q) the plaintiff and her sister were taunted in church; (r) Jensen became a trustee in 2003 of the Brethren School that the plaintiff attended. (s) an attempt was made to remove the plaintiff from her mother's guardianship; (t) the plaintiff's mother and sister moved towns; (u) the plaintiff's sister met with Bruce Hales 5 times in 3 years. The trial of Mr Jensen and the making of the non-publication order 1. The plaintiff's evidence at the trial before Knight DCJ concerning the manner in which she was assaulted by Mr Jensen (including her evidence of uncharged sexual assaults), and her emotional and physical reaction to the assaults, was the subject of suppression orders made by Knight DCJ on 13 April 2007. His Honour also made non-publication orders in respect of other material which was annexed to an affidavit sworn by Jessica Purches, solicitor, which detailed Mr Jensen's attack on the plaintiff's character during the trial. Publication of the fact of the attacks was not the subject of his Honour's orders. 2. The non-publication orders are as follows: (a) the Court vacates all non-publication orders previously made. (b) The Court orders that the publication of the evidence of [Jane Doe] given in the trial of R v Lindsay Ronald Jensen (where [Jane Doe] was the victim) describing the particular manner in which she was assaulted by the offender in respect to each offence, and other uncharged sexual conduct be forbidden. (c) The Court orders that the publication of the evidence of [Jane Doe] given in the trial of R v Lindsay Ronald Jensen (where [Jane Doe] was the victim) describing her emotional and physical reactions to the offender's sexual conduct be forbidden. (d) The Court orders that the publication of the material annexed to the affidavit of Jessica Purches sworn 10 April 2007 be forbidden. (e) The Court orders that the publication of the evidence given in the trial of R v Lindsay Ronald Jensen of the attacks made on the personal character of [Jane Doe] (the victim in that trial) be forbidden but that this order shall not prevent the publication of the fact of those attacks being made. Other publications 1. On the front page of the Melbourne Age on 30 December 2006 an article entitled "Brethren bid to hide sex assaults" appears. The second defendant is the author of that article. The same article appeared on 30 December 2006 on the front page of the Sydney Morning Herald. The Exclusive Brethren sect has tried for almost four years to cover up the sexual assaults of two girls, protecting the abuser, ostracising the victims and blaming their mother. The perpetrator, a senior respected and rich Brethren elder in a country town, was found guilty in a Sydney court two weeks ago of eight charges, including the digital rape of one girl of eight and the repeated indecent assault of her older sister. … None of the parties in the recent sexual assault case can be identified for legal reasons, but the distraught father of the two girls has told The Age that in 2003, before the case was reported to police, the girls' mother came under intense pressure by the Brethren not to report the assault to police. … According to the father, one of the Brethren's most senior Australian members also told the victims' mother that she should take the blame for the sexual assaults. During this time, the wife of the sexual predator was allowed to interview the older sister for several hours. Towards the end of that session, the abuser himself also joined the interview. Under pressure, the girl was forced to retract her complaints and issue a written apology to her abuser and his wife. "It was a coerced admission that it was because of my own daughter's naughtiness and sinfulness that she had said such a thing", the father said. The retraction and apology was presented as evidence for the defence during the man's trial, but rejected by the jury. 1. On 16 January 2007 Mr Jensen was sentenced by Murrell SC DCJ, after a trial in which the plaintiff's sister was the complainant, to imprisonment for an effective term of 5 years with a 3 year non-parole period. The sentencing judgment (which I shall assume was read in open court) included the following: [1] On 18 December 2006, a jury found the offender guilty of four counts of indecent assault on a child under ten years old, and one count of sexual intercourse with a child under ten. Each of the incidents occurred between 28 February 2002 and 1 January 2003, when the victim was nine years old. [2] In an earlier trial before Judge Knight, a jury found the offender guilty of 3 offences against the victim's older sister. Those offences occurred between 31 January 2002 and 16 May 2002, when the victim's sister was more than ten years old. The offender has not yet been sentenced for those offences. [3] The maximum available penalty for an offence of indecent assault on a child under 10 is 10 years' imprisonment. The maximum available penalty for an offence of sexual intercourse with a child under 10 is 20 years' imprisonment. Because of the age of the subject offences, no standard non parole period applies. [4] … [5] In early 2002, the victim's mother suffered a serious injury. During the remainder of 2002, while their mother was receiving treatment or convalescing, the victim and, on occasions, her sister, stayed at the offender's house for periods of a week or longer. Each of the incidents occurred while the victim was staying with the offender's family, ie while the offender had immediate responsibility for the victim's well-being. The offender was someone whom the victim "really trusted". The offender and the victim would exchange hugs "just like you would hug your mum or dad". Her Honour's sentencing reasons are available for download at https://www.jade.io/article/4790. 1. On 13 April 2007 Mr Jensen was sentenced by Knight DCJ to an effective additional term of 12 months on the sentence imposed by Murrell SC DCJ for the criminal assaults on the plaintiff. No published judgment or transcript of the sentencing proceedings was tendered in the proceedings. 2. In the weekend edition of the Sydney Morning Herald of 14-15 April 2007 the following article entitled "More jail time for sex abuser" was published (a day after the suppression order issue by Knight DCJ was lifted permitting publication of the name of Mr Jensen): A former member of the Exclusive Brethren was sentenced yesterday to another year in prison. The Herald can now reveal that Lindsay Ronald Jensen had committed sexual offences against two young girls who were also members of the Brethren when he was in a position of trust towards the girls. The Exclusive Brethren had initially investigated complaints from the girls, aged nine and 12, and had excluded the Jensen family from the community. But attempts were made to discredit the older girl, and the Brethren hierarchy dismissed the complaint and temporarily readmitted the Jensens. The older girl saw Jensen at her school and raised the alarm there, sparking a police investigation. … Jensen had already been sentenced in January to at least three years' jail for his more serious offences. Yesterday the judge added another year to his sentence for three counts of aggravated indecent assault, making him eligible for parole in December 2010. 1. The book entitled "Behind the Exclusive Brethren" was first published in 2008 with two subsequent reprints in 2009 and 2010. Chapter 6 of the book is entitled "Albury". In the context of describing the troubled nature of the Albury Brethren and the tensions that have been exposed, the second defendant said as follows: … a living case-study of what happens when a religious group tries to police the boundaries of its faith and to maintain strict separation from sin by relying on judgmentalism and heavy-handed regulation. He goes on to describe a scandal that: … was breaking out in Albury that would divide the Brethren community in two. It would result in two men being jailed, three families damaged, and multiple children denied contact with their fathers. It would also lead to an accusation that the sect's world leader had tried to cover up the sexual abuse of two young girls. Lindsay Jensen was a senior and wealthy Brethren businessman and a trustee of the sect's local private school. He was well liked, but was not considered a sect elder, partly because he had the reputation of being lustful towards the women of the flock. In the words of Brethren spokesman Tony McCorkell, he was regarded as 'a bit loose-moralled'. Despite this, in 2002, a dreadful series of events led to two vulnerable young girls being sent to live in his house. The story began in 1999 when the girls' father left the family home, unable any longer to hide the fact that he was homosexual. In Brethren demonology, this is the most terrible sin, the subject of distaste and revulsion – being, as Bruce Hales put it, 'unnatural against the anatomy'. Brethren medical doctor Mark Craddock, one of Hales' personal physicians, later described the father as having a 'sordid history of infidelity involving a long-term alternative relationship', and also being 'a loser by any decent person's standards'. Despite the distaste with which the Brethren regarded him, this man had managed, after great effort, to maintain some access to his children, with fortnightly visits being organised at the home of the children's grandparents. Other Brethren were present at these four-hour visits, the father says, and it 'certainly was a hostile environment'. But in March 2002 the girls' mother suffered a terrible accident, in which both her thigh bones were broken, putting her in a wheel-chair and rendering her incapable of looking after her children. Even though the father was still in Albury, he was not considered by the Brethren to be a candidate to care for the children. Instead, they were sent to a local family, the Jensens. Two months later, in May, the elder of the two girls, who was 12, just turning 13, told her grandfather that her host had sexually abused her. But the Brethren immediately dismissed the complaint because, according to the official version, the girl had a 'tendency to make up stories', and Jensen denied it. To complicate the situation, the girls' mother, despite her invalid state, had also had an affair with Jensen. In two separate trials in 2005 and 2006, Jensen was convicted on eight charges of sexual assault of the two sisters, including one count of sexual intercourse without consent, and sentenced to five years' jail, with a non-parole period of three years. The sentencing judge, Gay Murrell, commented that the relationship between victim and abuser was 'brought about because of membership of the church'. But getting to the point where the justice system was able to do its work was a long, tortuous, and psychologically scarring experience for the girls and their mother, who needed to thread their way through a Brethren community and hierarchy that was determined to prevent the story coming out. (It must be emphasised in this account that Jensen continues to maintain his innocence; his wife and family are standing by him.) When the older girl first reported the crime, so deep was the disbelief of her that Jensen's wife was allowed to interview her, with Jensen himself entering the room towards then end of the session. They extracted from the girl an admission that she had lied, and that her naughtiness and sinfulness were to blame for her false allegations. And there the situation rested for a full year, even though the father, who was still in contact with his daughters, noticed 'by their change of behaviour that something was wrong'. The second defendant accesses the Court file 1. On 7 January 2016 the second defendant applied to the District Court seeking access to the Court file relating to the trial proceedings of Mr Jensen. The request for access was made on the following basis: I am a journalist writing in the public interest in light of the recent revelations from the Royal Commission into institutional responses to child abuse. There is an institutional component to this case, as both the perpetrator and the victim were members of the Exclusive Brethren religion, and the girls were living with the perpetrator's family as a result of a religious ruling from the church's leadership. 1. On 4 February 2016 access was granted by Assistant Registrar West entitling the second defendant to inspect the indictment, exhibits, transcripts of evidence and any record of a conviction or order. No order was made (or sought) for photocopy access. The second defendant was advised of the terms of the order for access by the District Court's media liaison officer. That email reads as follows: Hi there Michael, Good news! The Registrar has considered your application for docs in R v Lindsay Ronald Jensen – 2006/00015329 file. You have been granted access to inspect the following documents: Indictment Exhibits Transcripts of evidence Any record of a conviction or order. Access is granted subject to strict compliance with the non-publication order made on 13 April 2007 (see scanned document), noting that all non-publication orders made prior to that date have been vacated. The file is available for inspect from the District Court Registry at the Downing Centre on Level 3. Ask for [court staff]. 1. The second defendant sent the following email in response: That is indeed good news, [media liaison officer]. Thank you very much. I'll arrange travel to Sydney in the next week or so. I guess I'll need a couple of days? Michael 1. The media liaison officer responded: Hi there, Yes, there's a bit to go through. You are able to take notes but you can't take copies or take photos of the file so it will be the old fashioned note taking. … 1. In his filed defence in the proceedings, the second defendant admitted that he photographed part of the file using his mobile phone, including one of the handwritten notes in which the plaintiff was forced by Mr Jensen to recant the allegations of sexual abuse. The full text of the handwritten note (in photographic form) was reproduced in both of the published articles. It reads as follows: 29 – 5 – 2002 I have always thought of the relationship between Lindsay and I as a father/daughter relationship before [grandfather's name] mentioned anything about it. Lindsay has always been like a father to me since Dad went, and I was glad for it because I needed some sort of father. The things that I said that happened, I don't believe they happened at all. [Plaintiff's name] 1. In May or June 2016, Mr O'Brien, the solicitor for the plaintiff, was supplied with a draft of the article proposed to be published. It was not provided to him by the first or second defendant. On 9 June 2016 Mr O'Brien advised the second defendant that the Church regarded the (draft) article as containing information which would lead to the identification of the plaintiff and that, were that to occur, s 578A of the Crimes Act would be contravened. Mr O'Brien also contended that the articles were defamatory of the Plymouth Brethren and Bruce Hales. The draft article was in similar although not identical terms to the published articles; the differences being predominantly stylistic. The articles as published do not appear to have been altered to remove or qualify those parts of the article which Mr O'Brien contended identified or were likely to identify the plaintiff. The plaintiff's awareness of the publications of the articles 1. In the plaintiff's affidavit she refers to being readmitted to St John of God Hospital (SJOG) at Burwood in May 2016 to address a chronic dependency on alcohol. She was admitted to the same hospital in May 2014. 2. She was discharged on Saturday 17 June 2016, unaware of the publication of the article in The Good Weekend that day. The plaintiff gave evidence that upon discharge she felt "really confident and [was] looking forward to a fresh start and a shiny new life" and to maintaining her sobriety. She went on to say that she felt confident enough to be able to attend Church events where alcohol was served and to resume her membership of the Church. 3. On 18 June 2016 she was informed by her husband of the publication of the article the previous day. 4. She gave evidence that upon reading the article online, she felt nauseous. She went on to say: I was very shocked by what I was reading – it was about me – but at this point I took a deep breath and felt compelled to continue to read. … I then got to the section of the article which contained a copy of a note that I had been forced to write as a child by Lindsay Jensen [the note]. I said to [my husband] words to the effect of "that's my handwriting, that's the note they made me write". I felt like I had been hit by a bus. I ran to the bathroom and stood over the sink heaving as if to vomit. … After reading the article, I felt "panicky" and my breathing was rapid. The article did not specifically name me but there were references to me and my younger sister … which I believe would have made it easy for someone to know it was about me. 1. The plaintiff's stated belief that she had been identified as the child (or one of the children) referred to in the article was only relied upon on the issue of damages. She also gave evidence that various people with whom she spoke after the articles were published identified her as one of the children referred to in the articles. The "identification" objection 1. This evidence, and the evidence of various witnesses to similar effect, was relied upon by the plaintiff as relevant to the issue of identification essential to proving both breach of the prohibition against publication in s 578A(2) in support of her common law claim for damages of material identifying a complainant and as one aspect of her claim for equitable compensation. The evidence was also relied upon in the assessment of damages for both causes of action in that it was submitted that what others said caused her to feel humiliated, anxious, extremely inadequate and helpless. There was no objection to the evidence on the issue of damages. The defendants objected to the plaintiff giving evidence of conversations with people who she says identified her as one of the children in the articles as a source of proof that the articles in fact identified her or that they were capable of so doing. The defendants also objected to nominated paragraphs in each of the affidavits of witnesses who deposed to a belief that other people to whom they had spoken or who had spoken to them had identified the plaintiff as the child (or one of the children) referred to in the articles. 2. It is unnecessary to extract in full the evidence to which objection was taken. The plaintiff's evidence and the witnesses whose evidence she relied upon for this purpose were largely consistent in form. For illustrative purposes, in the case of the plaintiff's affidavit (after amendment as a consequence of unrelated objections) the paragraphs the subject of objection read as follows: 41 In the evening, I received a call from my cousin [name] who said words to the effect of "I just read the Article … you must be going through hell. I just wanted to let you know I'm thinking of you". [Name] only knew that I had been sexually assaulted but it was clear to me from what she said that she knew that the Article was referring to me. … 47 On either the Saturday or Sunday night, I texted Dr Daniel Murray. I wrote to him words to the effect of "have you seen the good Weekend?" He replied with words to the effect of "yes, I did. I recognised that the article was about you. Oh my goodness… there are no words to describe this. Worst timing ever". … 63 A friend of mine … also said to me words to the effect of "I have read the Article and it is absolutely shocking. How can they do it to you? Is it even legal? How are you coping? I would be in a mental home if I were you." … 65 At one of the [group therapy] sessions which post-dated the Article's publication, I saw [AL], another attendee. A is from outside the church and knew nothing more about my childhood past than what I referred to in that previous group session. A came up to me and said words to the effect of "I read the Article and recognised you right away. How are you coping? How is your mother? Is the church helping you?" I was ashamed and embarrassed. … 80 The Article did not specifically name me. However, since publication, the following people identified me from the Article: [names omitted]. 81 The following people (residing overseas) also identified me from the Article. Whilst I cannot recall the exact discussion with them, I do recall that they said words to me words to the effect of "I saw the Article about you and it is terrible". [names omitted]. 82 The following people identified me from the article: [names omitted]. 83 The following people said to me words to the effect of "I saw the article and know it was about you": [names omitted]. 1. The plaintiff submitted that this evidence was admissible on two bases. The first was that the identification evidence was relevant for a non-hearsay purpose pursuant to s 60 of the Evidence Act 1995 (NSW). By way of example, in the context of par 41 of the plaintiff's affidavit (extracted above), the testimonial content of the telephone call was not relied upon for proof of the asserted fact (that the declarant was thinking of the plaintiff in the belief that she was going through hell), but as proof of her/his belief that the articles in fact identified the plaintiff, there being no other rational explanation for the conversation in the terms she deposed to other than that the person she was speaking to, having read the article, had in fact identified her as one of the two children sexually abused. This was said to be illustrated even more clearly by par 63 of the plaintiff's affidavit (also extracted above) in that the plaintiff does not rely on what was said to prove the asserted facts that the declarant read the article and found it "shocking", but that on reading the article the declarant identified the plaintiff as its subject. 2. In support of the admissibility of this evidence for a non-hearsay purpose (namely to prove the fact that the material in the article led a number of people to identify her as one of the two sisters abused by Mr Jensen) the plaintiff relied upon the observations of Samuels JA in Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643. In that case his Honour held that in an action for defamation, and in circumstances where the plaintiff was not otherwise identified by the terms of the publication, the belief of a witness that a defamatory article referred to the plaintiff is admissible to establish the range or extent of the identification of the plaintiff as the person defamed. 3. The plaintiff submitted that although that case concerned an action in defamation, by parity of reasoning the evidence under challenge here is also admissible as original evidence, albeit, in this context, to prove the fact that the material in the article lead a number of people to identify the plaintiff as one of the sisters abused by Mr Jensen, irrespective of whether the Court came to a different view as to whether the article identified the plaintiff or was likely to lead to her being identified. 4. In Mirror Newspapers Ltd v Fitzpatrick, Samuels JA said, at 656, the following: There is authority for the admissibility of evidence of declarations made out of court for the purpose of identification. In Cook v Ward (1830) 6 Bing 409; 130 ER 1338, evidence was held admissible that the plaintiff had been publicly ridiculed after publication of the libel. Tindal CJ (at 415; 1340) said that the evidence was properly admitted "as identifying the subject of the libel"; and Park J (at 416; 1341) observed that the evidence had been admitted "to identify the Plaintiff as the person to whom the ridicule of the libel attached". In the earlier case of Du Bost v Beresford (1810) 2 Camp 511; 170 ER 1235, the plaintiff sued the defendant for the value of a painting entitled "Beauty & the Beast" which the defendant had cut in pieces on the ground that it was a scandalous libel upon his sister and her husband. In the course of the trial Lord Ellenborough held that the declarations of the spectators, while they looked at the picture in the exhibition room, were evidence to show that the figures portrayed were meant to represent the defendant's sister and brother-in-law. In Jozwiak v Sadek [1954] 1 WLR 275; [1954] 1 All ER 3, Ormerod J, relying upon Cook and Du Bost, admitted evidence of statements made out of court and of anonymous telephone calls to the plaintiff, to identify the plaintiff with the libel; and it appears that evidence of declarations out of court were admitted in aid of the innuendo in Hough v London Express Newspaper Ltd [1940] 2 KB 507. There are cases in this Court to the same effect, upon which the respondent relied, ie Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348; World Hosts Pty Ltd v Mirror Newspapers Ltd [1978] 1 NSWLR 189 and Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225. In Steele (at 369, 370) Hutley JA (in a judgment with which upon this point I expressed my general agreement) held that the evidence of witnesses that other persons in the country town where the plaintiff lived had declared that they believed the defamatory article to refer to the plaintiff (whom it did not name) was admissible to establish the extent of the identification of the plaintiff with the person whom the article described. It is possible that this ruling was strictly obiter, since there was direct evidence of identification not under challenge which was sufficient to carry the case to the jury. However this may be, it was applied by the court (Moffitt P, Hutley and Glass JJA) in World Hosts, where it was held that evidence of statements made out of court was admissible to establish the extent of the identification of the plaintiff as the subject of the article: see at 202, 207 and 209. In Andrews the Court (Hutley, Glass and Mahoney JJA) applied Steele and World Hosts and admitted hearsay evidence of identification: see at 234, 248 and 264. 1. Continuing at 657, his Honour said: Apart from authority the evidence — say that concerning Miss Rowntree's criticisms — was, in my view, admissible in principle. It was not hearsay, but original evidence of the declarant's state of mind upon learning of what she took to be the respondent's deceitful conduct. "A person's declarations of his contemporaneous state of mind or emotion are admissible as evidence of the existence of such state of mind or emotion". Such testimony may represent a recognized exception to the hearsay rule, or may be received as an application of the doctrine of res gestae; in either case it is original evidence of the facts stated. It may be that the correct rationale is that the statements made are admissible evidence of conduct from which the existence of a compatible state of mind may be inferred. (References omitted) (Emphasis added.) 1. The second basis upon which the plaintiff submitted that the evidence was admissible was pursuant to the exception in s 66A of the Evidence Act (that section codifying the "recognised exception" to which Samuels JA referred in the preceding paragraph), in that the plaintiff's cousin's belief that the plaintiff was the subject of the article (the fact inherent in what she said as reported in par 41 of the plaintiff's affidavit) was evidence of her cousin's state of mind, and that was also a source of admissible evidence to prove that the plaintiff was identified in the articles. 2. The defendants submitted that the entirety of the evidence the subject of the identification objection was inadmissible as irrelevant to the issue of identification as it presents for determination in the plaintiff's action for common law damages for breach of statutory duty or her claim for equitable compensation. The defendants submitted that the question that arises in these proceedings is not the state of knowledge or belief of the various people who the plaintiff claims reported to her that they identified her in the articles, (as would be the case were the action brought in defamation where proof that the words said to be defamatory would reasonably lead persons acquainted with the plaintiff to believe that she was the person referred to is essential to liability for damages (see Samuels JA in Steele v Mirror Newspapers Ltd at 371 B-F)), but whether, as a matter of fact, the articles (in the terms in which they were published) identified or were likely to lead to the identification of the plaintiff such as to constitute a breach of the prohibition on publication with which s 578A is concerned, or which might support a claim for equitable compensation. 3. In support of that submission the defendants referred to Bailey v Hinch [1989] VR 78 where Gobbo J, when considering legislation in similar terms to s 578A of the Crimes Act, said at 93, "[i]n my view, the operation of the words in question [being "identify" or "likely to identify"] is a matter of fact in each case". Thus, the defendants submitted, evidence that a person known to the plaintiff, whether or not they knew something of her experience as a victim of child sexual assault, may have identified her as a subject of the articles does not bear relevantly on whether the Court is persuaded that the articles either identified the plaintiff or were likely to do so (and even less so is it determinative of that fact). While the plaintiff bears the onus of proving that the articles had that capacity if she is to prove the breach of duty under s 578A (or to support her claim for equitable compensation), she does not discharge that onus by adducing hearsay evidence that she was identified. 4. Mr Gray SC, senior counsel for the defendants, submitted that while there are similarities between the statutory test to establish breach of the prohibition on publication in s 578A(2), namely does the matter published identify the complainant or is it material that is likely to lead to their identification, and the factors to be taken into account in determining whether a defamatory imputation has identified a particular person in circumstances where the defamatory publication does not name the plaintiff, the two tests are not congruous. The harm caused by a defamatory publication is different from the harm caused by the publication of identifying material in breach of s 578A: the former concerns injury to a plaintiff's reputation as a consequence of identified or identifiable persons reading a publication in which defamatory statements are made and identifying the plaintiff as the subject of those statements, while the harm which s 578A is presumed to guard against concerns interference with a complainant's right to privacy, and to achieve a secondary public policy purpose of encouraging victims of sexual abuse to disclose abuse to authorities without fear of public exposure. 5. I do not regard the authorities upon which the plaintiff relied as they relate to the tort of defamation as distinguishable simply because harm to reputation that results from an actionable defamation is, or may be, different from the need to prove damage in a common law claim for breach of a statutory duty or breach of confidence. I am of the view, however, that the authorities upon which the plaintiff relied, all of which were decided in the context of an action in defamation and largely limited to the question of damages, have no direct application to the issue of identification that arises in these proceedings. In my view, whether the articles actually identified the plaintiff, or were likely to do so, is a question of fact to be resolved by the Court. That exercise will be undertaken principally by considering the text of the published articles and, where appropriate, the inferences that may legitimately be drawn from the text by the community of readers who know the plaintiff or who might be presumed to know her, including those witnesses who attested to having identified her (evidence as to which no objection was taken). I am satisfied that evidence of those witnesses (including the plaintiff) who say that they were told by others that upon reading the articles they identified the plaintiff is irrelevant to proof of that fact. 6. I am also satisfied that the evidence is admissible as evidence of a contemporaneous representation about a person's state of mind pursuant to s 66A of the Evidence Act, but limited to the assessment of damages. The declarant's state of mind (namely, a belief that the article identified the plaintiff as the child who was sexually abused by a Church elder) is relevant to damages, it being the plaintiff's case that the identification of her as one of the children the subject of the article by various members of her community caused her hurt, distress, embarrassment, humiliation, shame and guilt. 7. The balance of the affidavit evidence upon which the plaintiff relied may be summarised as follows. Affidavit of the plaintiff of 27 March 2017 1. The plaintiff deposed to having been raised in the Plymouth Brethren community in regional New South Wales. She attended a state school from kindergarten to Year 6, was home-schooled for part of Year 7, and attended various Plymouth Brethren schools in Sydney and regional New South Wales until completion of her Higher School Certificate in 2007. Thereafter she was employed in clerical roles in Australia and the United States within the community of the Church before taking leave from paid employment to care for her two children. 2. The plaintiff refers, without elaboration, to the sexual assault she suffered whilst living with Mr Jensen and his wife and the events that ultimately led to her disclosure of that abuse to the authorities, and to the trial and subsequent conviction after trial of Mr Jensen in November 2005. 3. The plaintiff describes issues with her mental health which she traces to the time when she was first assaulted. She was medicated from age 12, having been prescribed unspecified medications (save for a reference to Zoloft, an antidepressant) to assist with sleeping, and to manage her depressed mood and anxiety. Her mental health deteriorated during the criminal trial of Mr Jensen (when she was aged 14 to 15). She underwent extensive psychological counselling at that time. At age 15 she engaged in self-harm by cutting her wrists and commenced to abuse alcohol. From her late-teens she developed a chronic dependency on alcohol which increased in severity upon her return to Australia in 2012. 4. The plaintiff was first admitted to SJOG for detoxification under psychiatric care in May 2014, at which time she was consuming approximately 20 standard drinks per day. She remained "sober" for about four weeks before she relapsed. As noted at [42] above, she was re-admitted to SJOG in May 2016 for another course of detoxification and upon her discharge in June 2016 felt confident about her prospects of remaining sober and resuming her communion with the Plymouth Brethren community. 5. Upon reading the articles she says her "optimism vanished". She described her psychological state immediately following publication of the articles as follows: Despite my prior excitement to go to church and see the Brethren, I did not go. I felt so humiliated. I believe that there would be people there who would have known some detail about my sexual assault and identified me from the Article as well as those people who didn't know about the sexual assault or the Note but who would have identified me from the Article or found out from others that the Article referred to me. … Later that day, I went to visit my daughter at [my husband's] parent's house. I was meant to take my daughter back home with me that day but I was unable to care for her. I was physically shaky and unstable. I could not function and as much as I wanted my baby, I physically could not care for her. 1. In the months following publication of the articles, the plaintiff deposed to a recurrence of mental health issues including high levels of anxiety, panic attacks and hyperventilation, frequent crying and emotional lability. She also described a dependence on medication including Valium and Endone (which ultimately led to her third admission to SJOG in October 2016), and her inability at that time to properly care for her daughter. 2. In December 2016 the plaintiff and her husband resumed full-time care of their daughter but the plaintiff described difficulties getting up in the morning after resuming full-time care of her daughter. She described feeling shaky and anxious. She recounted two instances of self-harm at this time, including the use of a knife on her wrist and upper thigh. By February 2016 the arrangement whereby the plaintiff's daughter would spend a few nights a week in the care of her husband's parents was reinstated. 3. In February 2017 the plaintiff was admitted to Brisbane Waters Private Hospital (BWPH) at Woy Woy for treatment of her tendency to self-harm and for assistance in reducing her use of anti-depressant medications. Upon her discharge in March 2017 she described a reduced reliance on prescription drugs but said that she continues "to struggle with everyday life". 4. The plaintiff also deposed to what she described as "The Rumour Mill", being hurtful things she believed people within the Brethren community have said about her following the publication of the articles and her belief that the articles have given people who knew little of her personal and family history "cause to see [her] in a negative and shameful light making them feel justified for spreading cruel and untrue rumours about [her]". 5. Although the plaintiff's evidence was not challenged, including her evidence as to the deleterious effect of her belief that people identified her from the articles and held her in low esteem as a result, the defendants submitted that to the extent that her claim for damages (or equitable compensation) is made out, her damages will be nominal in circumstances where there is an insufficient causal link forged between the publication of the articles in June 2016 and her decompensating mental health thereafter, in particular where there is evidence of a range of pre-existing causal factors for her fluctuating mental health, not least the history of sexual assault itself and her chronic dependency on alcohol and prescription drugs for an extended period of years. Affidavit of the plaintiff's husband dated 27 March 2017 1. The plaintiff's husband deposed to knowing that the plaintiff was sexually assaulted by Mr Jensen as a child. He also deposed to observing an increase in her consumption of alcohol in mid-2012, many years prior to the publication of the articles, and that her dependence on alcohol increased from mid-2012 culminating in a referral to SJOG in 2015 and her admission for treatment in a hospital setting that year. The date of her first admission (which the evidence suggests in fact occurred in 2014) has no bearing on the assessment of damages in the absence of evidence that her pre-existing psychiatric illness or psycho-social predisposition to harm as a result of her dependence on alcohol was exacerbated by the publication of the articles, as distinct from that condition being a sequela of a number of chronic and long standing physical and mental health issues. There was no evidence to that effect. 2. Consistent with the plaintiff's evidence, her husband deposed to her alcohol consumption reducing following her first admission to SJOG (either in 2014 or 2015), but steadily increasing, again for reasons unrelated to the publication of the articles, culminating in a further admission in May 2016. He observed that following the plaintiff's second admission to SJOG she had improved self-confidence and sense of self-worth. He recalled the events of 18 June 2016 when, after he read the articles, he showed them to the plaintiff; and the plaintiff's subsequent deterioration over the course of the day leading to what he described as her "shut[ting] off from everyone and emotionally detach[ing] from our baby". 3. The balance of the plaintiff's husband's affidavit addressed the plaintiff's inability to devote her attention to their daughter due to her poor mental health, her further admission to SJOG and her admission to BWPH in 2017. Affidavit of TP dated 12 April 2017 1. TP is a relative of the plaintiff by marriage. His wife and the plaintiff's mother are cousins. He grew up in Wagga Wagga, New South Wales, and is a member of the Plymouth Brethren. When the plaintiff's family visited Wagga Wagga before the dislocation of the family unit they would often stay with TP's family. 2. As a result of TP's contact with the plaintiff he knew various details about her, including that she lived in a town in regional New South Wales; that her father left the church after revealing his homosexuality; that the plaintiff and her sister had been assaulted by Mr Jensen, an elder of the Plymouth Brethren, and that Mr Jensen was the subject of two criminal trials in the early 2000s for sexual abuse of the plaintiff and her sister. He claimed no knowledge of the details of the physical and sexual nature of the criminal assaults alleged against Mr Jensen. 3. He said that having read the article published on the Sydney Morning Herald website, after having been alerted to them by his brother, he realised "without any hesitation, that the two sisters referred to in the article were the plaintiff and her sister". Evidence of JK 1. JK is a family friend of the plaintiff and is married to one of the plaintiff's cousins. JK's father, NK (whose affidavit was also read as part of the plaintiff's case) knew the plaintiff's mother. JK's affidavit of 13 April 2017 was read. Additional evidence was adduced in chief and he was cross-examined. 2. In his affidavit JK detailed the circumstances in which his father and the plaintiff's mother grew up together on the Central Coast of New South Wales and of meeting the plaintiff in about 2006 and 2007 in that connection. He said the plaintiff lived with his family for approximately six to nine months in the beginning of 2010. 3. He said he knew that the plaintiff had grown up in regional New South Wales; that she was four years older than her younger sister; that she had left the regional town in which they lived to "get away from stuff going on within the Church"; that she "had come from a broken and troubled family"; that her parents had separated; that her father had left the Church because he was homosexual; and that her mother suffered a serious injury in an accident such that her "mental state was not the best". 4. He also knew that Mr Jensen was a senior member in the Church and resided in the same regional town as the plaintiff and that Mr Jensen was "somehow connected" with the plaintiff. He said he was unsure of the nature of the connection although he knew that court proceedings in the early 2000s involved the plaintiff and Mr Jensen and that his father was also involved in some way in those proceedings. He said that because of his father's connection with the proceedings, his father had taken "an interest" in the plaintiff. He suspected that his father "may have instigated [the plaintiff's family's] move to the Central Coast" in 2010. 5. He recalled being informed by his father on 15 June 2016 that there would soon be an article published in the Sydney Morning Herald about the Plymouth Brethren and, on 18 June 2018, he purchased a copy of the newspaper. He said that after reading the articles he formed the view that the plaintiff was one of the children referred to. 6. He also deposed to having first seen the plaintiff some months after the publication of the article at a dinner at his parent's home. He recalled that the plaintiff and her daughter were present and that the plaintiff seemed erratic and disconnected, and that she appeared to struggle with managing basic parenting tasks. He also recalled that the plaintiff progressively removed herself from Church functions, and that she was "not the social person she was in early 2016". 7. During examination-in-chief JK gave evidence as to the source of his knowledge of the plaintiff's father's sexuality. He said that at approximately age 14, he came to know that the plaintiff's father was homosexual; information he learnt at school on the Central Coast through "general rumours and conversation with other students" who were from the Plymouth Brethren community. He said that rumours about the sexuality of the plaintiff's father was something he heard "more than once" and that he had heard it before the plaintiff moved to the Central Coast. He said that it was not the sort of information that he had heard said about other men in the Brethren community. 8. During cross-examination JK accepted that prior to publication of the articles he knew the following facts: 1. the plaintiff had grown up in a regional town, and the name of that regional town; 2. the plaintiff had a younger sister and her age; 3. the plaintiff and her younger sister left the regional town in which they lived to "get away from stuff going on in the church"; that "stuff" being that the plaintiff's father had left the church due to his homosexuality, and that the plaintiff's family was broken and troubled; 4. the plaintiff's parents separated in 2006 or 2007; 5. the plaintiff's mother had suffered a serious injury in an accident and that she had poor mental health; 6. somebody called "Lindsay Jensen" lived in Albury and was a senior member of the Plymouth Brethren, and that there was some connection between Mr Jensen and the plaintiff's family; 7. there had been court cases in the early 2000s involving the plaintiff's mother and Mr Jensen. 1. Having established JK's knowledge of these matters, JK was provided with the sentencing remarks of Murrell SC DCJ following the criminal trial of Mr Jensen where the plaintiff's sister was the complainant. JK accepted that the sentencing remarks referred to Mr Jensen's sexual assault of two young girls who lived in regional NSW. He also accepted that the judgment referred to the children's parents being separated and that Mr Jensen had sexually assaulted both children after their mother had suffered a serious injury in an accident and could not care for her children. He said, however, that he would not necessarily have recognised that the sentencing remarks concerned the plaintiff and her sister. He later accepted (albeit in a qualified way) that his prior knowledge of the plaintiff and the matters referred to in the sentencing judgment might have enabled him to identify the plaintiff as one of the two sisters to whom her Honour referred but that was "not necessarily" the case. 2. He maintained the position, however, that he did not know until reading the articles that Mr Jensen was convicted and imprisoned for sexual offences against two girls who were sisters. He denied knowing that the plaintiff and her sister had been sexually assaulted by Mr Jensen. 3. Following cross-examination, I posed the following questions to JK: Q. Do I understand you to say this, Mr [K]; that if you were given the hypothetical exercise in 2016, of reading her Honour's sentencing remarks and you were asked this question, having read her Honour's sentencing remarks and knowing what you know about both Jensen as a man who you said you knew as a member of the Brethren, and the plaintiff and her sister as children of a Brethren family who had come to live with you in circumstance where there'd been a separation of their parents and in circumstances where you knew there was, I think you described it as, "Stuff going on within the church," if somebody had said to you, "Have you got any idea who these two children might be" and, I appreciate, it's very difficult to isolate your mind from what you actually now know to a state of abstract thinking at that time? A. Yes. Q. But, if you'd been asked by a judge, say, "Have you got any idea who those two children might be," do you maintain that you would not have thought, "Well, they might have been the young children who came to live at my home and stayed with me for a time as members of the household," or is it your evidence that you just find that exercise just too hard? A. Yes, I'd struggle to go through that exercise, your Honour. Affidavit of AH dated 13 April 2017 1. AH is a former neighbour and now a family friend of the plaintiff. He is also a member of the Plymouth Brethren. He lived on the Central Coast of New South Wales upon his emigration to Australia from South Africa. He recalled travelling to the regional town in New South Wales in which the plaintiff lived and being introduced to the Brethren community in that area. He recalls meeting the plaintiff at a weeknight Bible reading, in respect of which he said: I learned from my friend that, tragically [the plaintiff's mother's] husband left her for another man and he was no longer with the Church. 1. He recalled that the plaintiff's mother moved to the Central Coast in around 2007 with her children and that the plaintiff lived in a neighbouring house. He said that he and his wife grew close to the plaintiff and became her confidantes. He recalled that the plaintiff confided in him about various matters, including that: 1. After her parents separated, she and her younger sister were in the care of Mr Jensen and his wife; 2. Mr Jensen was a very arbitrary man with respect to discipline, and that the plaintiff would not know what she had done wrong but that he would issue punishments, termed "consequences". 3. Mr Jensen sexually abused the plaintiff and her younger sister whilst they were in his care; 4. Mr Jensen forced the plaintiff to write something while under duress. 1. He recalled becoming aware on 18 June 2016 that an article had been written about the Plymouth Brethren. He recalled accessing the article online and recognising that it was about the plaintiff and her younger sister. He said: [I]t was so obvious to me [that the plaintiff was the subject of the article] after the things I knew about the family and the things the plaintiff confided in me and my wife about. 1. AH said the information in the article upon which he formed the belief that the article was about the plaintiff included that it referred to two young girls who lived in a regional New South Wales town; that their father was homosexual and had left the plaintiff's mother and the church; that the plaintiff's mother misused alcohol; that the two girls were placed into the care of Mr Jensen; that Mr Jensen abused the girls and that he punished the "older girl", including through the administration of "consequences". Affidavit of Dr Colette Hourigan dated 13 April 2017 1. Dr Hourigan is the plaintiff's general practitioner. She has treated the plaintiff since 2010. She says that during the first six months of her treatment of the plaintiff she formed the impression that she was "an intelligent, articulate and resilient young woman". She noted that following the plaintiff's discharge from SJOG on 17 June 2016 she was determined to improve her physical and mental health. 2. She said that on 18 June 2016, prior to reading the article, she knew various details about the plaintiff, including that: 1. she was born and raised in a regional town in New South Wales; 2. she had a younger sister; 3. she and her family were part of the Brethren community; 4. her mother had been involved in a serious accident when the plaintiff was younger such that she couldn't care for her children and the plaintiff was placed in the care of Mr Jensen; 5. she was sexually abused by Mr Jensen whilst under his care; 6. Mr Jensen forced her to write a letter stating that the sexual abuse allegations she made were false; 7. Mr Jensen was the accused, and the plaintiff was one of the complainants, in child sexual assault trials in the early 2000s. 1. Dr Hourigan noted that after reading "the first five or so paragraphs" of the article she knew immediately that it was about the plaintiff given that: It contained so much information distinctly connected to the plaintiff's past that I was left with no doubt that the article was about her. 1. She said the plaintiff consulted with her on 22 June 2016. In respect of the consultation on that day, she said: I will never forget that consult. It was the most challenging and distressful consult I have had in my 30 years of general practice. The plaintiff was very distressed and I saw a bright young woman who has endured many adversities reduced to such a state of helplessness. She had changed from an articulate, smiling, easy to engage person to a withdrawn woman who has to rely on others to help her cope. 1. Dr Hourigan deposed to a conversation with the plaintiff in the following terms: Plaintiff: Did you read the article on the weekend? Dr Hourigan: Yes, I did. It was about you. Plaintiff: I saw the note that was published. It was in my handwriting but I can't remember writing it. How did he get it? How could someone do this to me? Don't they know how hard this has all been for me? 1. Dr Hourigan confirmed that prior to the publication of the articles the plaintiff had been diagnosed with alcohol dependency, depression and post-traumatic stress disorder but assessed her as "coping reasonably well". She also noted that the plaintiff had been prescribed medication to manage a range of psychiatric conditions, including Valium, Naltrexone, Mirtazapine, Baclofen, Lexapro, Edronax, Nexium and Minipress. She confirmed that the plaintiff has required assistance to help her to care for her daughter. Dr Hourigan also expressed the opinion that after the plaintiff completed the alcohol detoxification program at SJOG in June 2016, "her prospects for recovery were looking good". 2. Clinical records of Dr Hourigan's consultations with the plaintiff between 22 June 2016 and 2 August 2016 were annexed to Dr Hourigan's affidavit. In an entry dated 7 July 2016 the following is recorded: [The plaintiff] still feels shocked and horrified and violated by the printing of an article about her childhood abuse. Nightmares improved on minipress. Still alcohol free. Tempted but took Valium. LFT's improved. Valium use discussed. Not eligible for a payout as already paid. Eligible for counselling and financial assistance. Not taking Seroquel as [baby] screaming at night. 1. In an entry dated 13 July 2016 the following is recorded: Waiting for counselling with VVC. Dealing with her sister … over the article about their sexual abuse. Valium use discussed. Dealing with lawyers has been stressful so has used more recently but she has been made aware of its addictive nature. Has been trying to track her 2005 case trial in [regional town] court. Was referred to Sydney District Court. [Name] is the deputy registrar who emailed her. The journalist was give [sic] permission to see [her] file without [her] permission. The author of the article photocopied was printed the letter [she] wrote [sic]. Seeking a lot of support. [the plaintiff] feels overwhelmed, finding it hard to think, anxious, poor sleep. Wants to drink again with the stress of the article but abstaining. 1. Dr Hourigan's affidavit comprised the only medical evidence the plaintiff relied upon in support of her damages claim. The plaintiff's claim for breach of a statutory duty 1. The plaintiff's case is that by the publication of the articles the defendants breached s 578A of the Crimes Act 1900 (NSW) entitling her to bring a civil action for the recovery of common law damages. 2. Section 578A has been set out in full at [6], above. Section 578A(2) is the source of the duty not to publish material identifying or likely to identify a complainant in prescribed sexual assault proceedings, subject to subs (4) which provides for a variety of circumstances in which the duty has no application or, more accurately, where publication of identifying material will not constitute an offence. One of the questions which arises in these proceedings is the extent to which s 578A(4) operates to evince a legislative intention that no civil action for breach of s 578A(2) should be conferred where the legislature has vested the trial judge with authority to override the prohibition on the publication of identifying material. This is said by the defendants to sit incongruously with the construction contended for by the plaintiff, namely an unqualified right in a complainant to sue for breach of the statutory prohibition on publication. 3. The plaintiff submitted that the Court would find a legislative intention to confer a private right on a complainant to sue for damages for breach of s 578A(2), consistent with what was said to be the principled approach taken in a number of authorities, including what is said by the plaintiff to be orthodox application of those principles to analogous legislation in Victoria. 4. The plaintiff placed primary reliance upon what was said in Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24 at 424 per Brennan CJ, Dawson and Toohey JJ as a source of authority for the identification of the constituent elements of a common law action for breach of a statutory duty. At 424 their Honours said: A cause of action for damages for breach of statutory duty arises where a statute which imposes an obligation for the protection or benefit of a particular class of persons is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage of a kind against which the statute was designed to afford protection. 1. It is the plaintiff's case that upon a construction of s 578A in the legislative context in which it was enacted, including by the passage of amending legislation in 1987, each of the elements is satisfied. I note that in Jane Doe v Australian Broadcasting Corporation [2007] VCC 281, Hampel J cited the same extract from Byrne as the plaintiff relied upon when considering the question whether s 4(1A) of the Judicial Proceedings Reports Act 1958 (Vic) (which, as with s 578A, also operates to protect the identity of complainants by providing criminal penalties for breach of the prohibition on the publication of matters identifying them) conferred a private right to sue. 2. The defendants submitted that the Court will not infer a private right to sue for breach of the statutory duty in s 578A where a criminal sanction has been expressly provided for, together with the procedure by which that offence is to be prosecuted. The defendants also submitted that the operation of s 578A is not exclusively or even primarily for the benefit of a class of persons (being complainants in prescribed sexual assault proceedings) as the legislation has a wider public purpose and benefit. I note neither of the defendants has been criminally prosecuted for what the plaintiff contends is a breach of their duty not to publish identifying material about her as a complainant. There is no evidence before me that the prosecuting authorities, being in this case the New South Wales police, have spoken to either of the defendants or that any complaint has been made to them by the plaintiff or anybody on her behalf. 3. In Gardiner v State of Victoria [1999] VSCA 100 at [25] the Court noted: Another factor which is sometimes helpful is the existence or not of other remedy. As I have stated, a penal sanction will commonly be found attached to the legislative prescription, and prima facie that excludes the implication of additional civil liability. But if there is no such penalty or other remedy for breach of the statutory duty, or if the penalty which is fixed is considered inadequate (as in Groves v. Lord Wimborne[1898] 2 Q.B. 402), that can point towards the individual's right to sue for breach. A modern example of this may be found in Owen v. Shire of Kojonup [1965] W.A.R. 3, where the Court had to consider a statutory provision requiring local authorities to take out insurance for personal injuries sustained by voluntary fire fighters while fighting bush fires. It was held by Hale, J., and the Full Court accepted, that the plaintiff who was injured in such circumstances could sue the local authority for damages for not insuring him as required. In the course of his judgment, Hale, J. said, at 5:- "... it is doubtless correct that the public are interested in having men willing to take risks in fire fighting, but this interest could be advanced by s.37 [requiring the insurance] only if the section confers some effective remedy on a man who is injured in such circumstances, and in that regard the possible penalty of £50 for default prescribed by s.58 would be nugatory." Given the obvious purpose of the section to ensure that fire fighters could have recourse to insurance if injured, the lack of a significant penalty for non-compliance with the statutory requirement led the Court to conclude that civil liability was intended also. On the other hand, the existence of a complex or elaborate administrative structure to monitor compliance with the statute may point the other way: Balkin and Davis. In Byrne at 461, 425-6, the existence of alternative enforcement procedures was regarded as very important. 1. The defendants took no issue with s 578A imposing upon them a statutory duty not to publish material which identified or was likely to lead to the identification of the plaintiff as a "complainant" in "prescribed sexual assault proceedings" being, relevantly, the trial of Mr Jensen for the offences of child sexual assault and indecent assault. It is their submission (and the case they pleaded in their filed defence) that they were at all times aware of their statutory obligations and complied strictly with them. 2. The defendants also embrace the statement of principle in Byrne and the line of High Court authority which preceded it, but question whether it was applied correctly by Hampel J, if for no other reason than both the plaintiff, in her counsel's submissions, and her Honour, omitted reference to the passage immediately following the passage extracted at [104] above, where Dixon J's observation in O'Connor v SP Bray Ltd (1937) 56 CLR 464; [1937] HCA 18 at 477-478 is cited to the effect that the exercise in statutory construction "will rarely yield a necessary implication positively giving a civil remedy". The defendants submitted that Hampel J did not engage with the construction of s 4(1A) of the Judicial Proceedings Reports Act 1958 (Vic) in any meaningful way and that her finding that a private right to sue is conferred by implication lacks persuasive force for that reason. 3. The defendants also submitted that the single judge decisions of this Court in JD Bell (Calool) Pty Ltd v Shortland County Council (1991) 74 LGRA 398, Lubrano v Proprietors of Strata Plan No 4038 (1993) 6 BPR 97 and Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157, relied upon by the plaintiff as supporting the case she advances as the proper construction of s 578A of the Crimes Act, should not be treated as carrying precedential force, with each case readily distinguishable because of the particular statutory context in which it was decided. The constituent elements of a breach of statutory duty 1. To the extent that constituent elements of an action can be extracted from the statement of principle in Byrne, they are as follows: 1. A statutory duty is imposed on the defendant; 2. A legislative intention that the statute imposing the duty confers a private civil cause of action for breach of that duty; 3. The plaintiff is within the class of persons for whose benefit the duty was imposed; 4. Breach of the duty; 5. Damage caused by the breach of the duty of a kind which the duty was designed to prevent. 1. It was common ground in the proceedings that the first element is satisfied while the third, fourth and fifth are all matters of fact as to which the parties advanced competing submissions. Those submissions are dealt with below. The construction question encompassed by the second element was the focus of contest between the parties. The authorities which preceded Byrne 1. In Martin v Western District of Australasian Coal and Shale Employees Federation (1934) 34 SR (NSW) 593, at 596, Jordan CJ observed (citations omitted): If a statute creates a new duty, the question whether a person who suffers damage by reason of a breach of the new duty, may maintain an action in the ordinary courts for the breach depends upon the intention to be extracted from the statute when read as a whole, having regard to its general scope and purview as well as to its particular provisions. Regard may be had to considerations of policy and to the convenience or inconvenience which would result from the existence or non-existence of a right of action, and to the probability or improbability that the Legislature would intend to impose liabilities of the character which would arise from the existence of a right of action. No single feature—other than a provision dealing expressly with the point—can be regarded as being in all cases conclusive. 1. To similar effect, in Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397; [1967] HCA 31 at 405, Kitto J said: The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation… 1. The plaintiff submitted that one feature that favours the Court inferring a private right to sue for a breach of s 578A(2) is that the duty imposed by the section is specifically directed to the safety of a complainant in prescribed sexual assault proceedings. A legislative intention to provide for the safety of others was said by the plaintiff to be a factor given prominence in a number of authorities where a right of action was conferred, irrespective of whether the legislative provision under consideration also provided a mechanism where breach of the duty was expressly provided for, including by penal sanction. In that connection the Court was referred by the plaintiff to the observations of Dixon J in O'Connor at 478 where his Honour said: In the absence of a contrary legislative intention, a duty imposed by statute to take measures for the safety of others seems to be regarded as involving a correlative private right, although the sanction is penal, because it protects an interest recognized by the general principles of the common law. 1. That extract should not be read as authority for the proposition that the provision by the parliament of a penal sanction is of no relevance to the question of construction (see the discussion later at [139]). Further, not only are the observations of Dixon J extracted from a wider discussion of the circumstances in which a cause of action for breach of a statutory duty will be inferred, the particular circumstances of the case under consideration in O'Connor concerned whether a person injured as a result of the failure to maintain safety gear in a service lift contrary to a regulation in the Scaffolding and Lifts Act 1912 (NSW) could bring an action for breach of the duty enshrined in the regulation. The full extract of Dixon J's judgment is as follows: It is a question of some difficulty whether a civil remedy is given to a person injured in consequence of the breach of that clause. Such a person may, of course, maintain an action of negligence and rely upon the failure to comply with the statutory regulations as evidence of negligence. But it is a different question whether the enactment itself confers a distinct cause of action. The received doctrine is that when a statute prescribes in the interests of the safety of members of the public or a class of them a course of conduct and does no more than penalize a breach of its provisions, the question whether a private right of action also arises must be determined as a matter of construction. The difficulty is that in such a case the legislature has in fact expressed no intention upon the subject, and an interpretation of the statute, according to ordinary canons of construction, will rarely yield a necessary implication positively giving a civil remedy. As an examination of the decided cases will show, an intention to give, or not to give, a private right has more often than not been ascribed to the legislature as a result of presumptions or by reference to matters governing the policy of the provision rather than the meaning of the instrument. Sometimes it almost appears that a complexion is given to the statute upon very general considerations without either the authority of any general rule of law or the application of any definite rule of construction. An illustration may be found in a comparison of the decision and reasoning in Phillips v. Britannia Hygienic Laundry Co with those in Monk v. Warbey. Perhaps in the end, a principle of law will be acknowledged as the foundation of the cases. In the absence of a contrary legislative intention, a duty imposed by statute to take measures for the safety of others seems to be regarded as involving a correlative private right, although the sanction is penal, because it protects an interest recognized by the general principles of the common law. After the full discussion of the authorities by Jordan C.J. in Martin v. Western District of the Australasian Coal and Shale Employees' Federation Workers' Industrial Union of Australia (Mining Department) and Whittaker v. Rozelle Wood Products Ltd., it would be superfluous to refer to them. Whatever wider rule may ultimately be deduced, I think it may be said that a provision prescribing a specific precaution for the safety of others in a matter where the person upon whom the duty laid is, under the general law of negligence, bound to exercise due care, the duty will give rise to a correlative private right, unless from the nature of the provision or from the scope of the legislation of which it forms a part a contrary intention appears. The effect of such a provision is to define specifically what must be done in furtherance of the general duty to protect the safety of those affected by the operations carried on. (Emphasis added.) 1. As is clear from the full extract, the cases where a private right to sue has been conferred because of it being tethered to the safety of those persons who are to benefit from the statutory duty is usually where a correlative common law duty exists, most frequently encountered in legislation operating in an industrial context where the further obligation imposed by statute elaborates upon a pre-existing duty. As the defendants emphasised, this is to be contrasted with the operation of s 578A where a publisher owes no duty of care to a complainant. In Byrne at 424 this was made clear when in the passage following from the extract at [104] above, Brennan CJ, Dawson and Toohey JJ said: One generalisation that can be made is that where the persons upon whom the statutory obligation is imposed are under an existing common law duty of care towards the persons whom the statute is intended to benefit or protect, the statutory prescription of a higher or more specific standard of care may, in the absence of any indication of a contrary intention, properly be construed as creating a private right. Thus it is that Factories and Shops Acts and other legislation designed to protect the health and safety of employees in the workplace have been held to impose duties the breach of which gives rise to a right to sue for damages. 1. A "generalisation" of the same kind had earlier been indicated by Dixon J in O'Connor in the extract at [116] above and by Kitto J in Sovar. In O'Connor, Dixon J said, at 478: … I think it may be said that a provision prescribing a specific precaution for the safety of others in a matter where the person upon whom the duty is laid is, under the general law of negligence, bound to exercise due care, the duty will give rise to a correlative private right, unless from the nature of the provision or from the scope of the legislation of which it forms a part a contrary intention appears. The effect of such a provision is to define specifically what must be done in furtherance of the general duty to protect the safety of those affected by the operations carried on. (Emphasis added.) 1. In Sovar, Kitto J noted at 404 that there would generally be "a prima facie inference" that a personal right to sue for damages was intended: At least … where the peril provided against is one of personal injury and the relationship existing between the person enjoined and the person protected is one which is recognized by the common law as giving rise to a duty on the part of the former to take precautions for the safety of the latter. (Emphasis added.) 1. Kitto J also went on to say at 405 that: … where the enactment which prescribes the conduct is accompanied by the express provision of a criminal sanction for the enforcement of its requirements ... there is ground for a countervailing inference of an intention that in the event of a contravention the specifically provided remedy shall be the only remedy. (Emphasis added.) 1. It is significant to note that in Byrne the High Court found no private right to sue for breach of an award obligation under the then prevailing Industrial Relations Act 1988 (Cth) in circumstances where the public aims of the legislation, and its scope and purpose, were not such as to disclose any intention to benefit or protect employees, or any other class of persons by conferring on them a right of action at common law. The Court also emphasised that the maximum penalty for breach of an award in the relatively modest sum of one thousand dollars was inconsistent with the right to unlimited compensation by way of an award of common law damages which the Court considered was also suggestive of the legislature having intended that no civil right to sue should be conferred. 2. The unlimited liability in damages at common law (cf the Civil Liability Act 2002 (NSW)), in contrast to a relatively modest penalty for breach of a statutory duty imposed by the legislature, was also considered a feature of significance in Soutter v P&O Resorts Pty Ltd [1998] QCA 051; [1999] 2 QdR 106. In that case a statutory duty imposed on a licensed seller of alcohol under s 78 of the Liquor Act 1912 (Qld) not to permit drunken or disorderly people to be in or upon such licensed premises was said by an injured plaintiff to give rise to a common law right to sue for damages, it being submitted that the intent of the legislation could have no purpose other than to protect patrons from injury from such people. Pincus JA (with McPherson JA and Fryberg J agreeing) observed that although it might be reasonable to treat the statute as intended to protect respectable patrons of the licenced premises from harm or annoyances, including by people who were intoxicated, the question is not whether the legislature intended to confer protection from injury or damage of that kind but to determine, by the process of statutory construction, whether there was an intention to confer a right of action to sue for damages for such injury. The vagueness in the level to which a person must be intoxicated in order for the licensee to be able to discern and treat a person as a "drunken" person was one feature, amongst others, that the Court held ran counter to the plaintiff's claim that a right to sue for damages should be inferred. 3. The plaintiff submitted that another factor which supports inferring the existence of a private right in a complainant to sue for damages when the complainant's identity is published, or where material likely to lead to their identification is published contrary to the prohibition in s 578A, is that the statutory duty is intended for the benefit of a particular class of persons, rather than for the benefit of the public at large. It is clear that s 578A(2) operates to protect the privacy and anonymity of a complainant in prescribed sexual assault proceedings, and that the legislature should be taken to have intended to confer that direct and discrete benefit on people so described. The defendant submitted, and in my view persuasively, that there are broader protections the legislature intended to confer by the introduction of s 578A into the Crimes Act in 1987 which is strongly suggestive that the Parliament did not intend that a complainant should be able to sue for breach of the prohibition on the publication of identifying material. By way of example the defendants referred to X v Bedfordshire County Council [1995] 2 AC 633 where the obligations imposed on statutory authorities to protect children from abuse were set out in social welfare legislation, but where no private right of action was held to have been conferred. 4. Put simply, it is the defendant's case that there is nothing express or implied in the language of s 578A which evidences a legislative intention to provide a civil remedy in damages to a complainant in the event of a breach of the section, and nothing in the second reading speech in the Legislative Assembly for the bill which introduced s 578A into the Crimes (Personal and Family Violence) Amendment Bill 1987 (NSW) to suggest that a civil remedy was even countenanced. The then Premier of New South Wales, and Minister for State Development and Minister for Ethnic Affairs, Mr Unsworth, in moving that the Bill be read a second time, referred expressly to the prohibition on the publication of identifying information as a means of addressing the invasion of privacy involved in the identification of the victims of sexual assault and its impact in inhibiting reporting of such assaults, and expressly to the consequences of breach where substantial fines may be imposed on individuals and corporations publishing identifying information without the approval of the Court. 5. The defendants also submitted that it is clear from the second reading speech that although s 578A does operate for the benefit of a discrete class of persons (being complainants in prescribed sexual assault proceedings), the section was also intended to operate to achieve a wider and enduring public purpose by encouraging children and adults to report sexual offences and to cooperate with the prosecuting authorities in the prosecution of offenders and, in that way, to facilitate the administration of justice. The defendants submitted that s 578A was one provision amongst a raft of amendments to the Crimes Act designed to achieve that policy objective. 6. The defendants also submitted that in King v Goussetis (1986) 5 NSWLR 89, McHugh JA (Kirby P and Hope JA agreeing) made it plain that the question whether a statute confers a private right of action will not be answered in the affirmative merely because the enactment is for the benefit of a particular class of persons of which the plaintiff is a member. McHugh JA said, citing authorities I have referred to earlier, at 93: The grant of a private right by the statute does not depend on whether the statute is for the benefit of a class: O'Connor v SP Bray Ltd (1937) 56 CLR 464 at 477-8, 486-7; Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 68. The answer to the question whether a statute confers a private right depends on "the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon the question of statutory interpretation": Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405 per Kitto. 1. It is uncontroversial that no pre-existing common law duty is imposed on a publisher not to publish a report of court proceedings, or to publish only a restricted or circumscribed report where the subject matter is sensitive or even salacious, so long as the publication is full, fair and published in good faith and is not otherwise in breach of specific non-publication orders (as to which declaratory relief may be available) or which may be actionable under the Defamation Act 2005 (NSW). The defendant further submitted that a construction of s 578A which minimises the intrusion upon the principles of open justice should be favoured over a construction which creates a common law action to sue in damages where none has existed previously (Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63). 2. The plaintiff accepted that although a right to bring civil action for breach of statutory duty has most frequently been inferred in the context of industrial legislation, a private right to sue should not, as a matter of principle, be limited to the industrial context. In the plaintiff's submission, one example outside the industrial context is Pask v Owen [1987] 2 Qd R 421 in which the Full Court of the Supreme Court of Queensland held that an action for breach of a statutory duty was available for breach of s 63 of the Firearms and Offensive Weapons Act 1979 (Qld); a section which prohibited the provision of a firearm to a "prevented person" (relevantly a child of 15 years). The defendants were the parents of the 15 year old child who had supplied to the plaintiff a firearm and ammunition which caused serious injury to the plaintiff's eye and who were aware that their son had done so. In considering whether s 63 of the Firearms and Offensive Weapons Act gave rise to a civil right to sue the parents of the boy, Thomas J said (at 434): The first question of course is whether these subsections create a civil remedy in favour of anyone. The section does not expressly purport to do so, but such a consequence is rarely found by express declaration. It is usually determined by implication as a matter of statutory construction (O'Connor v. S. P. Bray Limited (1937) 56 C.L.R. 464, 477–478). It was faintly argued that s.63 carries no civil consequences and that no plaintiff could recover damages for breach of the requirements of that section no matter what the circumstances. However, whatever its drafting defects, I think that it is a provision which sets out to prescribe certain precautions for the safety of others, and that no contrary intention appears. I therefore conclude (as did the learned trial judge) that the legislature has prescribed certain duties which add to the general duties imposed by the law. 1. Andrews CJ, with whom Kelly SPJ agreed, said at 427: I would hold that this was a breach of statutory duty of continuing effect where the defendants permitted Troy Owen to keep the gun and ammunition in his room bearing the other aspects in mind. I regard "supply" as equivalent to "permit to use" or "permit to possess" the relevance of which will become more apparent. The section of the Act creating the duty in my view therefore created a private right vested in the plaintiff to have his safety ensured by compliance by the defendants with the provisions of the section and thus with the purposes of the Act. He is within a class sought to be protected, namely children coming into contact with Troy Owen, also a child, in his home in possession of the air-gun and ammunition, but in any event he would have the right as a member of the public. 1. Andrews CJ regarded as apposite the remarks of Dixon J in O'Connor v SP Bray Ltd extracted above. 2. Finally, the plaintiff relied upon the decision of Hampel J in Jane Doe v Australian Broadcasting Corporation [2007] VCC 281, which although having no precedential force, was said to reflect an orthodox application of the principles of statutory construction to an analogous legislative provision in Victoria. 3. Section 4(1A) of the Judicial Proceedings Reports Act provides as follows: (1A) A person who publishes or causes to be published any matter that contains any particulars likely to lead to the identification of a person against whom a sexual offence, or an offence where the conduct constituting it consists wholly or partly of taking part, or attempting to take part, in an act of sexual penetration … is guilty of an offence, whether or not a proceeding in respect of the alleged offence is pending in a court. 1. The plaintiff in Jane Doe v Australian Broadcasting Corporation was a victim of a sexual assault in which her then husband was convicted in trial proceedings as the perpetrator. On the day he was sentenced, the Australian Broadcasting Corporation broadcast three news reports. In each bulletin, the offender was identified by name. In one, the plaintiff's maiden name was broadcast, being the name to which she reverted following the sexual assault. The plaintiff brought proceedings for breach of statutory duty, negligence, breach of confidence and breach of privacy. At the time of the hearing of the civil proceedings, the journalist and the editor responsible for the broadcast had pleaded guilty to breaching the prohibition in s 4(1A) and had provided a written apology to the plaintiff and to the Court which dealt with them for that breach. 2. In the civil proceedings brought against them by the plaintiff, they argued that no private right to sue for damages was conferred by s 4(1A). In concluding that the section did confer on the plaintiff a private right to sue for damages, Hampel J reasoned as follows: 72 The principles governing the private right of action in respect of a breach of statutory duty, were articulated by Kitto J in Sovar v Henry Lane Pty Ltd: … A particular difficulty arises where the enactment which prescribes the conduct is accompanied by the express provision of a criminal sanction for the enforcement of its requirements. On the prima facie principle that expressio unius est exclusion alterius there is ground for a countervailing inference of an intention that in the event of a contravention the specifically provided remedy shall be the only remedy". 73 The question whether the presumption in favour of a private right to sue for damages is displaced by the imposition of criminal sanctions (such as those imposed by the Judicial Proceedings Reports Act) was answered in favour of the existence of a private right to sue in Byrne v Australian Airlines. There, Brennan CJ, Dawson and Toohey JJ said: A cause of action for damages for breach of statutory duty arises where a statute which imposes an obligation for the protection or benefit of a particular class of persons is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage of a kind against which the statute was designed to afford protection. 74 In my view, s.4(1A) is a provision which imposes an obligation for the protection or benefit of a particular class of persons, namely victims of sexual offences. If the obligation not to publish is breached, and a victim is identified, and suffers injury, loss or damage as a result of being wrongfully identified, such injury or damage is capable of being characterised as "of a kind against which the statute was designed to afford protection". It follows that the Byrne v Australian Airlines reasoning would give rise to a cause of action for breach of statutory duty to a victim of a sexual offence who suffers injury loss or damage as a result. … 79 It follows, in my view, that applying the principles set out in the passages I have quoted, the purpose of section s.4(1A) is to impose an obligation for the protection or benefit of the class of persons there referred to, namely victims of sexual offences, and as a consequence, a person in Jane Doe's position has a personal right to the due observance of s.4(1A), and a personal right to sue for damages if injured by a contravention of that right. 1. The defendants submitted that to the extent that Jane Doe v Australian Broadcasting Corporation might be accorded persuasive weight in determining whether a private right to sue should be inferred upon a construction of s 578A of the Crimes Act, it should not be followed. While they acknowledge that the extract from Byrne quoted at [73] of her Honour's judgment is a succinct statement of the essential elements of a cause of action for breach of a statutory duty, her Honour apparently treated that extract as determinative of the question with which she was concerned without considering, expressly at least, the related and critical question of whether the legislature should be taken to have intended to confer a private right to sue for breach of the statutory duty in s 4(1A), by examining that question in the context of a number of propositions which emerge authoritatively from the collected authorities, referred to extensively in argument before me. 2. The defendants submitted that her Honour appears to have reasoned as follows: (a) the legislation imposes a statutory duty; (b) the duty operates for the benefit of a particular class of people (including the plaintiff); (c) the duty was breached; and (d) that breach led to the plaintiff's identification, consequent upon which she suffered harm. 3. While the failure to make express reference to the need to consider the issue of a legislative intent to confer a private right to sue in the context of the legislation generally, including the "probability or improbability" or the "convenience or inconvenience" of the legislature intending to impose a civil liability for damages (the informed approach to the question in Martin v Western District of the Australasian Coal and Shale Employees' Federation Workers' Industrial Union of Australia (Mining Dept) extracted at [113] above) might not, of itself, have altered the conclusion her Honour reached, in the absence of a detailed consideration of the question of statutory construction, and the competing considerations to which that question gives rise, and having regard to the particular statutory context in which the issue arose under the Victorian legislation where s 4 of the Wrongs Act 1958 (Vic) was implicated (an Act similar in operation to the Civil Liability Act 2002 (NSW)), I do not regard Jane Doe v ABC as carrying the persuasive force for which the plaintiff contends. Consideration of the authorities 1. To the extent that there is a prima facie inference in favour of the conferral of a private right to sue for breach of s 578A because of the protections that observance of the prohibition affords a complainant in proscribed sexual assault proceedings, in my view that presumption is displaced for a number of reasons. The absence of a common law duty of care owed by a publisher to a complainant is one factor which militates against s 578A conferring a right of action in damages for breach. This is contrasted with the existence of a common law duty of care being recognised as a "generalisation" or "presumption" in favour of a statutory duty conferring a private right of action –Byrne at 424; O'Connor at 478; Sovar at 404 – and none exists here. 2. In addition, and in my view a most compelling factor operating to displace what the plaintiff contends is the prima facie inference that a private right to sue should be inferred, is the express provision in s 578A of a mechanism for enforcement of breach of the statutory duty, and the protection of a complainant as part of the protections the amending Act was intended to confer, by the provision of a penal sanction for breach of that provision. While in earlier cases to which I have referred an express method of enforcement, even to the extent of providing a penal sanction, did not necessarily derogate from the availability of a private right to sue for damages in certain circumstances (most commonly specific duties imposing on employers the provision of safe working environments notwithstanding the imposition by statute of criminal penalties for breach), as Phillips JA observed in Gardiner at 469, more recent cases paint a different picture. The plaintiff's reliance on Whittaker v Rozelle Wood Products Ltd (1936) 36 SR (NSW) 204 in the following passage needs to be read in that light. At 207 Jordan CJ said: Amongst the more important of these [matters which support the existence of an intention that a right of action should be available] is the rule that, if the duty is seen to have been created for the purpose of protecting persons from injury of a particular kind, the fact that a penalty is imposed for a breach of the duty, irrespectively of whether it leads to such injury or not, does not of itself show that if one of the persons intended to be so protected sustains an injury, of the kind contemplated, by reason of the breach, he is precluded from maintaining an action at law in respect of his injury. 1. Similarly, in Byrne the existence of enforcement procedures was considered to be of particular significance. At 461 the following was said: The existence of rights conferred by the legislation to recover payments due under awards and the power of the court to order payment of penalties tend against the proposition that, from the nature, scope and terms of the legislation, there arises the further inference that damages are recoverable. 1. In addition, and to the extent that Hampel J should be understood at [73] of Jane Doe v ABC (extracted at [134] above) to have relied upon Byrne as authority for the proposition that provision of the criminal sanctions do not displace a private right to sue, neither the passage in Byrne cited above, nor the decision more generally, supports that suggestion. 2. The significance of the existence of enforcement procedures was emphasised by Wood CJ at CL in Preston v Star City Pty Ltd [1999] NSWSC 1273. In that case the plaintiff alleged that in breach of s 70 of the Casino Control Act 1922 (NSW), the defendant induced him to take part in gaming in its casino by informing him that he would be treated as a "high roller" and by supplying him with complimentary products, services, and privileges, including free alcohol, and providing a cheque cashing facility for his use. The plaintiff also alleged that the defendant induced him to continue to take part in gaming in its casino when it knew that he had already suffered a substantial gaming loss. In determining that a private right to sue for damages was not conferred, his Honour said at [87]: [T]he comprehensive regulatory scheme set up under the Act and Regulations, which includes the establishment of a body charged with monitoring legal casino gaming in the State and supervising compliance by casino operators and staff, and which provides for criminal and civil sanctions, as well as for disciplinary action in the event of any contravention of the Act, Regulations or licence conditions, is such that the requisite legislative intention to confer a private right of action for damages is lacking. 1. Finally, McDonald (t/as BE McDonald Transport) v Girkaid Pty Ltd [2004] NSWCA 297 is a further source of guidance as to the circumstances in which a private right to sue will be conferred. In that case, a fire broke out on land owned by Girkaid upon which a warehouse partitioned into two areas was located: one area was leased by Inghams Enterprises and the other by Girkaid. Containers of tall oil had been delivered to the appellant's warehouse for on-delivery. The oil was classified as "dangerous" pursuant to sch 1 of the Dangerous Goods Regulation 1978 (NSW). The respondents alleged that the fire was caused by the spontaneous combustion of the oil which had been mixed with a mineral absorbent, and sued the appellant for breach of statutory duty said to have been created by the Dangerous Goods Regulation. There were three regulations under consideration: r 18(e), 19(e) and 19(g): 18. Instructions in handling of dangerous goods Every: … (d) employer of persons engaged in the keeping or conveyance of dangerous goods, shall take all practicable steps to ensure that every person subject to his direction and control and engaged in the handling of the dangerous goods is: (e) adequately instructed as to the hazards involved in the handling of those goods and precautions to be observed in relation to those goods; and (f) competent to operate all safety equipment, including vehicles, pumps, fire protection equipment and breathing apparatus, provided in pursuance of this Regulation in connection with the keeping, conveyance or handling of those goods. 19. Precautions to be observed in relation to premises (general) Every: (a) holder of a licence issued under section 8 or 19 of the Act in respect of any premises; (b) occupier of premises in or on which dangerous goods are kept or explosives are manufactured; (c) employer of persons in or on premises referred to in paragraph (a) or (b); and (d) person employed in or on premises so referred to, shall: (e) take all practicable precautions to prevent the occurrence on the premises of accidents through fire, explosion, leakage of dangerous goods or other causes; (f) …; and (g) not do any act in or on the premises that may cause fire, explosion, or any other dangerous occurrence, or that is not reasonably necessary for purposes of, or properly incidental to, the keeping or manufacture of dangerous goods. 1. The Court concluded that regulations 18(e) and 19(e) did confer a private right to sue, but that 19(g) did not, because it provided only "the end but not the means" by which the occupier is to provide for the safety of others. In respect of 19(g) McColl JA said: [173] It might be accepted, therefore, that the purpose of the Dangerous Goods Act and the Dangerous Goods Regulation was to regulate the keeping, handling and use of dangerous goods in order, inter alia, to reduce the risk of damage by fire or explosion: cf Wright v T I L Services Pty Limited (1956) SR (NSW) 413 at 415 per Owen J construing the Inflammable Liquid Act 1915 and that, therefore, they are directed to the interests of the safety of members of the public or a class of them (O'Connor v S P Bray Limited). [174] However, the question whether a statutory duty confers a correlative private right of action also turns on whether the statute imposes a duty to take "a specific precaution" (O'Connor v S P Bray Limited) or "measures for the safety of others" (John Pfeiffer Pty Limited v Canny). [175] In Storozuk v Commissioner for Railways (1963) 63 SR (NSW) 581 at 593 – 594, Brereton J (with whose reasons Else-Mitchell J agreed) doubted whether regulations which expressed an obligation in terms of a requirement to take "all practicable precautions" founded a civil action. This was because the phrase did not "prescribe or define precisely the means that must be taken …" (referring to Windeyer J in General Constructions Pty Ltd v Peterson (1962) 108 CLR 251 at 257). In Slivak v Lurgi (Australia) Pty Limited[2001] HCA 6; (2001) 205 CLR 304, however, all members of the High Court held, respectively, that a provision of the Occupational Health, Safety & Welfare Act 1986 (SA) which turned on the phrase "ensure so far as reasonably practicable" created a private cause of action (at [27] – [29] per Gleeson CJ, Gummow and Hayne JJ, at [50] per Gaudron J, at [87] per Callinan J). [176] Although the question whether a statute confers a private cause of action ultimately turns on the terms of the particular legislation, Slivak v Lurgi (Australia) Pty Limited is persuasive authority supporting the view that the requirements in regulations 18(e) and 19(e) to take "all practicable steps" and "all practicable precautions" sufficiently identify specific precautions or measures to support the primary judge's conclusion that, taken with the purpose of the dangerous goods legislation, those regulations created a private cause of action. I would, therefore, reject ground 6(a) of McDonald's grounds of appeal insofar as it relates to regulations 18(e) and 19(e). [177] Regulation 19(g) is in a different category. It prescribes the end but not the means. It does not identify any specific precaution or measure which the occupier is to take for the safety of others. It is a blanket prohibition on doing the act in question. It does not tell the occupier what measures must be taken: cf Utah Construction & Engineering Pty Limited v Pataky [1966] AC 629 at 641. In my view, the absence of identification of specific precautions means that regulation 19(g) should not be construed as conferring a correlative private cause of action on Girkaid and Inghams. I would, therefore, uphold ground 6(a) of McDonald's notice of appeal insofar as it related to regulation 19(g). 1. In Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209, Le Miere J held (at [80]-[112]) that the Act and Regulations under consideration did not create a private right of action. In reaching that conclusion his Honour referred (among other authorities) to O'Connor, Sovar, Byrne, Gardiner and Girkaid, including (at [106]) the importance identified in Girkaid of a statute prescribing the means by which the duty was to be enforced as well as the end to be achieved if a private right was to be conferred by implication. His Honour expressed the principle of statutory construction to be applied in that context as follows (at [105]): For a statutory duty to give rise to a private cause of action the text of the provision, having regard to the nature, scope and purpose of the legislation, must yield a necessary implication positively giving a civil remedy. The necessary implication has more readily been found in occupational health safety and welfare legislation than in other legislation. (Emphasis added.) 1. The judgments at first instance upon which the plaintiff relied do not require close consideration as each can be distinguished on its facts. Lubrano and Jackson (the latter a case to which Young J referred in Lubrano) were decided in the context of the obligation of a body corporate under the Strata Titles Act 1973 (NSW) to maintain facilities which are enforceable by unit holders as a statutory duty, with the question whether a unit holder can sue for damages for breach of that duty determined in that particular context. 2. In JD Bell (Calool) Pty Ltd & Ors v Shortland County Council the plaintiffs alleged breach of a general duty of care owed by the defendant as the local electrical supply authority in support of their claim for damages resulting from a fire caused by an uninsulated high voltage aerial cable on an overhead line coming into contact with a tree growing on the boundary of the plaintiffs' property. The fire caused substantial damage. In addition to the general duty of care, the plaintiffs alleged a breach of the statutory duty said to be owed by the defendant by reason of reg 38 of the Overhead Line Construction Maintenance Regulations 1962 (NSW) which is in the following terms: Where an aerial conductor of an overhead service line is in contact or is likely to come into contact with any tree, steps shall be taken by the electricity supply authority to have such tree trimmed to prevent contact with the earlier conductor. 1. Cole J considered the applicable legal principles, reaching the concluded view that the purpose of the regulation extended beyond imposing upon the electrical supply authority an obligation to the Crown, sounding only in a penalty. In his view, the terms of the regulation revealed an intention in the legislature that was protective of the safety of persons and their property. He went on to say: That being so, to adapt the words of Dixon J in O'Connor v Bray, reg 38 is a provision prescribing a specific precaution for the safety of the persons and their property in a matter where the council upon whom the duty laid is, under the general law of negligence, bound to exercise due care, and thus the duty gives rise to a co-relative private right to sue for breach of that duty. I can find nothing in the regulation, of the legislation under which it was made, which indicates any contrary intention. Conclusion 1. Applying the principles of statutory construction and guided by the authorities that have considered the question, I am not satisfied that s 578A confers a private right to sue where the statutory duty not to publish identifying material related to a complainant in sexual assault proceedings is breached. In the absence of the existence of a presumption in favour of a particular provision conferring a private right to sue (and, in my view, s 578A does not do so), such a right will only be conferred where the legislature's intention to confer a right is provided for expressly, or by necessary intendment. There is nothing in s 578A, the Crimes Act generally, or the Crimes (Personal and Family Violence) Amendment Act, which supports such a view. Indeed, the overwhelming impression I am left with is that the only remedy the legislature intended to provide when s 578A is breached is the imposition of a criminal sanction. The fact that a judge might, in the exercise of the discretion in s 578A(4), decide to permit publication of the identity of a complainant where the public interest dictates it, also operates to displace any inference that a private right to sue is conferred. Importantly, and again consistently with the authorities to which I have referred, in circumstances where there is no recognised pre-existing common law duty on the part of a publisher to protect the identity of a complainant, and where the existence of criminal sanctions for breach of s 578A is expressly provided for, there is no necessary or available implication that the Parliament intended that an additional method of securing a complainant's anonymity is to provide, by statute, a private right of action on proof of injury compensable by an award of damages. The blanket prohibition on publication of material that identifies or might lead to the identification of a complainant, without any indication of the means by which such a prohibition may be observed, also lends weight to the conclusion that a legislative intention to confer a private action is lacking. 2. It follows that the plaintiff's claim for damages for breach of statutory duty fails. 3. To the extent that error has infected that analysis, and a right to sue for damages is conferred in s 578A, at the urging of the parties I will express my view as to whether the defendants breached their statutory duty. Is the plaintiff obliged to prove mens rea? 1. The defendants submitted that, on a proper construction of s 578A, mens rea is a necessary element of the criminal offence for breach of the prohibition on publication in s 578A(2). That being the case, they submitted that it follows that to successfully prosecute a breach of the duty as a civil wrong the plaintiff must also establish mens rea, albeit to the civil standard (Waugh v Kippen (1986) 160 CLR 156 at 164-165 Chugg v Pacific Dunlop Limited (1990) 170 CLR 249). The plaintiff submitted to the contrary. 2. In Griffin v Marsh (1994) 34 NSWLR 104 at 107-108 Hunt CJ at CL referred to the relevant law stated in He Kaw Teh v The Queen (1985) 157 CLR 523 at 529-530, 567-568 and 594-595, in Von Lieven v Stewart (1990) 21 NSWLR 53 (at 66) and in Hawthorne (Department of Health) v Morcam Pty Ltd (1992) 29 NSWLR 120 at 131 from which he extracted two propositions to be considered in determining whether an offence-creating provision imposes mens rea as a constituent element: 1. The common law presumption is that an essential ingredient of every offence is that the defendant knew of the wrongfulness of his or her act unless the statute excludes that presumption either expressly or by necessary implication. 2. In determining whether the common law presumption has been displaced in the particular case, regard should be had to: 1. the words of the statute itself; 2. the subject matter with which the statute deals; and 3. whether an absolute liability will assist in overcoming the mischief at which the statute is aimed. 1. Griffin v Marsh was concerned with whether s 8D(1) of the Taxation Administration Act 1963 (Cth) which made it an offence for a person (a) to refuse to answer a question asked of them when attending before the Commissioner or another person pursuant to a taxation law or (b) to "refuse to produce a book paper record or other document", was an offence of strict or absolute liability or one requiring proof of mens rea. While His Honour was of the view that standing alone the offence created by subs (a) appeared to be one of absolute liability (there being no room for the operation of the Proudman v Dayman "defence" (Proudman v Dayman (1941) 67 CLR 536; [1941] HCA 28) where the failure is to refuse to answer a question), when s 8D was read in a wider legislative context, he concluded that the "defence" could be invoked for an offence constituted by subs (b) making it an offence of strict liability. In considering the two propositions extracted from He Kaw Teh, his Honour went on to find that although neither the words of s 8D(1) nor the context in which they appear in the statute give any indication that the legislature intended that mens rea should be excluded, nor anything to indicate that it was intended that the offence should be one that does not require proof of intention by necessary implication, and although the public interest in the Commissioner obtaining access to information and documents under compulsion as part of the existing mechanisms for the collection of tax was a signpost which pointed in the direction of liability being absolute, that alone did not warrant the imposition of absolute liability. He concluded that the offence created by s 8D(1) was one of strict liability. 2. That approach to the question of construction was embraced by Studdert J in Waters v Pacific Publications Pty Ltd [1999] NSWSC 366; a decision which is closer to the question that presents here in that both provisions are directed to similar objectives, being the right of certain persons involved in certain types of curial proceedings to anonymity. 3. Waters concerned an alleged breach of s 68(1) of the Children (Care and Protection) Act 1987 (NSW) which relevantly prohibited the publication of the name of a child to whom care proceedings under Part 5 of the Act related. Section 120 of the same Act provided a criminal sanction for an offence against s 68(1). After considering the authorities as to whether mens rea is an element of the offence created by s 68 (including He Kaw Teh and Griffin), his Honour concluded that the prosecution needed to establish, as a constituent element of the offence created by s 68(1), a knowledge or an awareness on the part of the publisher that the child who was named in the publication was in fact a child in respect of whom there had been proceedings under Part 5 of the Act. In reasoning to that conclusion his Honour referred to ss 67 and 68 which provided as follows: Section 67 – Exclusion of general public from proceedings (1) While the Children's Court is hearing proceedings under this Part with respect to a child— (a) any person (other than a person referred to in paragraph (b)) who is not directly interested in the proceedings shall, unless the Children's Court otherwise directs, be excluded from the place where the proceedings are being heard; and (b) any person who is engaged in preparing a report on the proceedings for dissemination through a public news medium shall, unless the Children's Court otherwise directs, be entitled to enter and remain in the place where the proceedings are being heard. (2) While the Children's Court is hearing proceedings under this Part with respect to a child— (a) the Children's Court may direct the child to leave the place where the proceedings are being heard at any time during the proceedings if it is of the opinion that the prejudicial effect of excluding the child is outweighed by the psychological harm that is likely to be occasioned to the child if the child is allowed to remain there; and (b) the Children's Court may direct any person (other than the child) to leave the place where the proceedings are being heard at any time during the examination of any witness if it is of the opinion that it is in the interests of the child that such a direction should be given. (3) The powers exercisable by the Children's Court under subsection (2) (b) may be exercised even if the person to whom a direction under that paragraph is given is directly interested in the proceedings. (4) If the Children's Court gives a direction under subsection (2) (a) with respect to a child, it shall also give a direction under subsection (2) (b) with respect to all persons who are engaged in preparing reports of the proceedings for dissemination through a public news medium. Section 68 – Publication of names, etc. (1) The name of any child— (a) who appears as a witness before the Children's Court in any proceedings under this Part; (b) to whom any proceedings under this Part relate; or (c) who is mentioned or otherwise involved in any proceedings under this Part, shall not be published or broadcast, whether before or after the proceedings are disposed of. (2) Any person who publishes or broadcasts the name of any child the publication or broadcasting of which is prohibited by subsection (1) is guilty of an offence. (3) Subsection (1) does not prohibit— (a) the publication or broadcasting of an official report of the proceedings of the Children's Court that includes the name of any child the publication or broadcasting of which would otherwise be prohibited by subsection (1); or (b) the publication or broadcasting of the name of a child— (i) in the case of a child who is under the age of 14 years at the time of publication or broadcasting—with the consent of the Minister; or (ii) in the case of a child who is of or above the age of 14 years at the time of publication or broadcasting—with the consent of the child. (4) For the purposes of this section, a reference to the name of a child includes a reference to any information, picture or other material that identifies the child or is likely to lead to the identification of the child. 1. At [29]-[34] his Honour said: [29] Section 67 contemplates that proceedings under Pt 5 may attract media interest. Hence a representative of the media is to be permitted to hear the proceedings, (s 67(1)(b)), unless excluded from the hearing under that sub-section or under s 67(2)(b). A representative of the media or, indeed, any person publishing or broadcasting in relation to care proceedings "whether before or after the proceedings [were] disposed of", would generally be expected to have the guilty knowledge associated with the publication or broadcast in contravention of s 68(1) by reason of his very conduct. In the present case the magistrate found no specific reference in the article to the care proceedings under Pt 5, and it was not apparent that the respondent was aware such proceedings had occurred. However, putting to one side the present case, the very purpose and expression of a publication or broadcast contemplated in s 68(1) would generally be indicative of guilty knowledge in the publisher or broadcaster. Assuming an inadvertent publishing or broadcast though it is difficult to see why the common law presumption should have been intended to have been displaced. [30] The statute has in s 67 recognised the community interest in responsible reporting of proceedings in the Children's Court under Pt 5 of the statute. Whilst a child's interests require that such community interest be restricted so that the child is not identified in a report on such proceedings, it does not seem to me that the balancing of identified competing interests calls for the rebuttal of the presumption of guilty knowledge as an element in an offence of publication under s 68. [31] I am unable to find in the subject matter of s 68, or in the statute generally, a reason for the displacement of the common law presumption confirmed in He Kaw Teh. [32] Nor does it seem to me that an absolute liability under s 68 would assist in avoiding the mischief towards which the section is directed. [33] I add that facilitation of the task of prosecution for an offence under s 68 should not, and would not, rebut the common law presumption. To this effect Brennan J in He Kaw Teh said at 580: "A pragmatic concern about unmeritorious acquittals does not warrant the imposition of strict liability." [34] I consider that the wrongfulness of the publisher's act is a necessary ingredient in an offence under s 68. It was not contended by the appellant that there was prima facie evidence of such guilty knowledge placed before the magistrate and it follows that, in my opinion, the decision of the magistrate was correct. 1. The defendants submitted that when the same analysis is applied to s 578A there must be an obligation on the party who brings proceedings against a publisher who has actually identified a complainant or published material likely to lead to the identification of that person, to prove that publication was with criminal intent. It is not enough, so it was submitted, simply to establish that material was published where the publisher knew that the person who was the subject of the articles was in fact a complainant in prescribed sexual assault proceedings; it is also essential for the prosecution to establish that the publisher knew or believed that information that was published about that person actually identified them or it was likely to do so. In the defendants' submission, nothing in s 578A suggests that the common law presumption that mens rea is an essential element of a criminal offence is displaced (cf s 105(5) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) which declares that a prohibition on the publication on the identity of a child is an offence of strict liability). In addition, it was submitted that the concept of matters "identifying" or "likely to lead to identification" of a complainant implies an enquiry into the publisher's subjective state of mind and a legislative intention that a "guilty mind" is a requisite element for that reason. Finally, it was submitted that the imposition of absolute or strict liability on a publisher would unduly fetter the conscientious reporting of criminal proceedings which, by their nature, are of legitimate public interest and concern. 2. The defendants maintained the submission that the overwhelming inference on the evidence in these proceedings is that they neither knew nor believed that the articles would identify the plaintiff as a complainant in the criminal trial of Mr Jensen, or that their publication would likely lead to the identification of her in the sense that the material would "probably" have that effect (as to which see [184] and following]). In support of that inference being drawn in their favour, they emphasised that there was no reference in the articles to the plaintiff by name or by other descriptors, including by the redaction of her name and her grandfather's name in the photograph of the note, and what they claim was the careful use of generic references to her as one of two children sexually abused both by her gender and the fact that she was a child who lived with her family in a country town. That being so, the defendants submitted that the plaintiff would fail to establish to the civil standard that they intended to publish the identifying material knowing or believing that it would identify her or knowing or believing that it would likely lead to her identification, and that her claim for damages would fail for that reason. Conclusion on the question of mens rea 1. Though the matter is not entirely free of doubt, there being some room to construe the offence in s 578A(2) as importing an obligation to prove an intentional publication of identifying material where the publisher knew it was material of that kind, I favour the approach taken by Gobbo J in Bailey v Hinch when, in considering s 4 of the Judicial Proceedings Reports Act at 86, his Honour said: It was argued on behalf of the informants that the standard of proof for offences under s 80 of the County Court Act was one that fell within the category of absolute liability, or alternatively strict liability, and that it was not necessary for the informant to prove that the defendant had the necessary mens rea. The learned Magistrate did not have to decide this matter in relation to s 80 as he there held that there was no case to answer. But in relation to s4 of the Judicial Proceedings Reports Act he held that the offence was one of strict liability. As such, mens rea was not a necessary ingredient, but the informant was obliged to satisfy him once the issue was raised that the defendant did not have an honest and reasonable belief in facts which if true would make his act innocent. The comprehensive examination of the topic by the High Court in He Kaw Teh v R (1985) 157 CLR 523; 60 ALR 449 both confirms the threefold approach to the question of intent and settles the question that the burden of disproving honest and reasonable mistake, once properly raised, rests on the prosecution. Thus the following remarks of Lord Diplock, when discussing Proudman v Dayman in Sweet v Parsley [1970] AC 132, commended themselves to several members of the Court: "Unlike the position where a statute expressly places the onus of proving lack of guilty knowledge on the accused, the accused does not have to prove the existence of mistaken belief on the balance of probabilities; he has to raise a reasonable doubt as to its non-existence". This resolution of the onus question has no doubt made it easier to accept the intervening category of strict liability so as to import a mental element into the offence short of requiring proof of mens rea. In my view, the nature of the subject matter of this statutory offence and the terms of the statute itself make this offence appropriate for strict liability. Such a category enables the statute to have a meaningful operation without being defeated by difficulties of enforcement whilst at the same time leaving open honest and reasonable mistake. I reject, however, the informant's primary submission that the subject matter was so critical that only absolute liability could secure the proper operation of the statute. It is true that some support was given to the informant's argument by the rule that the terms of an injunction must be strictly obeyed and that an honest belief that an act does not constitute breach is no defence to proceedings for contempt. See McNair Anderson Associates Pty Ltd v Hinch [1985] VR 309. But the analogy is not really appropriate, for the issue as to whether there is a breach of an injunction is quite separate from the consequence of that breach and there is longstanding authority that establishes the rule peculiar to injunction cases illustrated in the McNair Anderson Case. 1. I also note that in Alan Belford Jones; Harbour Radio Pty Ltd; Nationwide News Pty Ltd v R [2008] NSWDC 8, Finnane QC DCJ was satisfied that s 11 of the Children (Criminal Proceedings) Act 1987 (NSW) which prohibits the publication and broadcasting of the names of children and child witnesses was an offence of strict liability. 2. In short, I consider the offence created in s 578A(2) to be one of strict liability. That construction would allow for the operation of an honest and reasonable mistake of fact as a defence to a publisher who publishes material that does not identify the complainant, but which is found by objective analysis to have been likely to lead to his or her identification. That construction would achieve the same policy outcomes as a construction where mens rea is a requisite element of the offence. The identity of those who identified the plaintiff 1. On the issue of identification as it arises in the context of the plaintiff's claim for breach of statutory duty and breach of confidence, the Court was referred to Gatley on Libel and Slander (12th ed, 2013) where, at [7.1], the following was said: The question in all cases is whether the words might be understood by reasonable people to refer to the claimant, subject to the qualification that where the words are published to persons who have special knowledge the issue will be decided by reference to what reasonable persons possessing that knowledge would understand by them. 1. To similar effect, in David Syme & Co v Canavan (1918) 25 CLR 234; [1918] HCA 50 at [238], Isaacs J said: The test of whether words that do not specifically name the plaintiff refer to him or not is this. Are they such as reasonably, in the circumstances, would lead persons acquainted with the plaintiff to believe that he was the person referred to? 1. The parties were agreed "identification" is a question of fact to be determined in the particular circumstances of the case. The parties disagreed as to whether the publication of the articles was such that it was likely to lead to the plaintiff being identified as one of the the child complainants in the Jensen trial. 2. The plaintiff referred to Channel Seven Adelaide Pty Ltd v Stockdale-Hall [2005] SASC 307 where Vanstone J was concerned with the prohibition on identification in s 71A(4) of the Evidence Act 1929 (SA). That section provides as follows: (4) A person must not publish any statement or representation - (a) by which the identity of a person alleged in any legal proceedings to be the victim of a sexual offence is revealed; or (b) from which the identity of a person alleged in any legal proceedings to be the victim of a sexual offence might reasonably be inferred, unless the judge authorises, or the alleged victim consents to, the publication (but no such authorisation or consent can be given where the alleged victim is a child). 1. At [11], her Honour held that breach of that section will occur whenever material is published which described the victim and which is "sufficient, when added to knowledge already possessed by members of the community, to enable identification". 2. The plaintiff also commended to the Court the comments of Gobbo J in Bailey v Hinch [1989] VR 78 at 93-94 where, in considering whether s 4 of the Judicial Proceedings Reports Act, which prohibited the publication of the name, address or school or any other particulars likely to lead to the identification of a person against whom a sexual offence of a "material kind" had been committed (or any picture of the person or purporting to be that person) was breached by publication of the name of the presiding judge: There is much force in the argument that a publication that leads or is likely to lead to the name of the victim does not necessarily mean that this is equivalent to identification of the victim. This would seem to be so, for example, where the name of the defendant is John Smith and nothing more is revealed or likely to be revealed. In such a case, where it is known that the accused was alleged to have raped his wife, all that would be known was that the victim's name was Mrs. John Smith. As a matter of construction, I am of the view that the mere surname of the victim cannot automatically be equated with identification. In the John Smith type of example, it is difficult to see how it could, though it could amount to identification if the case took place in a small town where there was only one or there were very few Smiths residing. With a less common name, it may be that the mere name is enough. Further, I do not accept that publication of particulars likely to lead to ascertainment of only the name of the victim cannot amount to identification. In my view, the operation of the words in question is a matter of fact in each case. It is not open to me to decide this matter as though I can reconsider this issue and then replace the Magistrate's decision with my own if my view of the facts differs from his view. The gist of the challenge to the Magistrate's decision was that he in effect misdirected himself in that he misconceived the meaning of "likely to lead to identification". I am satisfied that he did not misdirect himself and that he did not equate the ascertainment of the name of the victim with identification of the victim. Rather, he related the likely ascertainment of the name of the victim with the likely identification of the victim. It is clear from a perusal of his reasons that he treated this as a question of fact. The learned Magistrate held that there were circumstances about the case that were unusual, namely, the controversial subject matter of the issue of whether a husband could in law be guilty of the offence of raping his wife; and secondly, in the considerable notoriety and public interest surrounding the case. These circumstances, according to the learned Magistrate, meant that the publication of the name of the Judge was likely to lead to the identification of the victim. That was a question of fact that he had to decide. It is not open to this Court on an order to review to interfere with a finding of fact by the learned Magistrate unless it can say that the finding was one that no reasonable tribunal could have come to. I could not so find and I was not really asked to so find. I was asked to find, however, that the learned Magistrate had in effect created a new test based upon the likely conduct of a well-informed member of the community, a test which it was said was not justified by the section. In my view, the reasons of the Magistrate do not support this. Rather, they indicate that the learned Magistrate was setting out his process of reasoning in making his finding of fact. There was no error in this for the Magistrate was not obliged to proceed on the basis that the broadcast had to be capable of leading anyone who heard it to proceeding further to a possible identification of the victim. The victim is not merely entitled to protection from the least astute members of the community. 1. R v West Australian Newspapers Ltd, Ex Parte Keating on behalf of the Attorney-General for Western Australia (Full Court of the Supreme Court of Western Australia, 19 June 1997, unreported) concerned the question whether a newspaper had contravened s 35(1) of the Children's Court of Western Australia Act 1988 (WA) by publishing material "likely to lead to the identification of a child" in proceedings in the Children's Court. The authorities to which the Court had regard included Bailey v Hinch. Murray J (with whom Kennedy and White JJ agreed) noted that the legislation was "clearly concerned to strike a balance between two competing principles" – being open justice on the one hand, and the protection of children on the other. 2. In the result His Honour found that what was proscribed was the capacity for identification "generally by the public, rather than by private individuals who may, by reason of knowledge otherwise acquired, have a particular capacity to identify a child the subject of a report which a general reader, viewer or listener would not otherwise have" and that "it must be established that there was a real or substantial prospect that the report would lead the general reader, viewer or listener to identify the child". He acknowledged that even such a "general" reader would have "a general substratum of knowledge, relevant to the report and the proceedings" such that "the meaning conveyed by the report and the likelihood that it identifies a child involved in the proceedings with which the report is concerned, is to be judged against the background of that general body of available knowledge." One consequence of that analysis was, in his Honour's view, that "it would not be necessary or indeed relevant to adduce evidence that any particular person who read the report made the identification as a result of the knowledge possessed by that person as a member of the public". 3. To similar effect is the statement by Laws LJ in Briffett v Crown Prosecution Service [2001] EWHC Admin 841; [2002] EMLR 12 at [21]: Moreover it is important to have in mind ... that the offence created by section 39 is committed (if committed at all) at the moment of publication, and not at any later time. It follows that evidence to the effect that this or that person in fact identified the child after reading the newspaper report may, depending on the precise circumstances, have to be treated with a degree of caution. A person might make such an identification even though the newspaper report had not itself been likely to produce that result. 1. In 2005, Keating was considered in another Western Australian case in Western Australia v West Australian Newspapers Ltd and Anor; ex parte James Andrew McGinty MLA, Attorney General for Western Australia (2005) 30 WAR 434; [2005] WASCA 161 ("McGinty") where the Court (Wheeler, Roberts-Smith JJA and Miller AJA), provided some further elucidation of the concept of the "general" reader at [25]: Thus, while the ordinary general reader is not one who is closely and intimately connected with the child or the child's family, so as to be able to identify the child from details unlikely to be generally known, such a reader may be a person who lives in the same small town as the child, or who attends or teaches at, or is the parent of a child who attends, the child's school. Once that is appreciated, it can readily be seen that publication of a number of details regarding the child, each in itself unlikely to lead to identification, may in combination have that effect. 1. The approach of the Court in McGinty confirms that the relevant reader was not someone who already knew particular details about the person not generally known. A fortiori, the defendants submitted that the relevant reader for present purposes is not someone who already knew that the plaintiff had been sexually assaulted by Mr Jensen, or a reader who knew other information about her and her family which was not generally known. 2. Finally, reference was made to Howe v Harvey (2008) 20 VR 638; [2008] VSCA 181 where the Court was considering legislative provisions which prohibit publication of particulars likely to lead to the identification of a child in s 26(1) of the Children and Young Persons Act 1989 (Vic). That section provided: 26. Restriction on publication of proceedings (1) A person must not publish or cause to be published— (a) except with the permission of the President, a report of a proceeding in the Court or of a proceeding in any other court arising out of a proceeding in the Court that contains any particulars likely to lead to the identification of— (i) the particular venue of the Children's Court, other than the Koori Court (Criminal Division) and the Neighbourhood Justice Division, in which the proceeding was heard; or (ii) a child or other party to the proceeding; or (iii) a witness in the proceeding; or (b) except with the permission of the President, a picture as being or including a picture of a child or other party to, or a witness in, a proceeding referred to in paragraph (a); or (c) except with the permission of the Secretary granted in special circumstances in relation to a child who is the subject of a custody to Secretary order or a guardianship to Secretary order, any matter that contains any particulars likely to lead to the identification of a child as being the subject of an order made by the Court. 1. At 651-652 after summarising the effect of the judgment in Waters (the substance of which I have referred to at [155]-[156] in the context of the question of mens rea) and after referring to in Keating (although not to McGinty) the Court went on to say: We put to one side for the moment the question whether s 26(1)(a) is breached only if the publication refers expressly or impliedly to the Children's Court. That question is dealt with in [68]–[95] below. At this point we focus solely on the question whether the "ordinary reasonable reader test" should be applied in deciding whether the section has been breached. We do not consider that s 26(1)(a) required the magistrate or judge to ask the question whether the ordinary reasonable reader would have regarded the report as a report of a proceeding in the Children's Court. In our opinion, the question whether there has been a breach of s 26(1)(a) is a factual one, which does not require the interposition of a test based on the perception of an "ordinary reasonable reader". We reach that conclusion for the following reasons. First, the use of the ordinary reasonable reader test to determine whether a statement carries a defamatory imputation does not require it to be applied in interpreting s 26(1). It is true that there is some overlap between the factors taken into account in the context of defamation law and the factors relevant to the construction of s 26(1). Like some defences to defamation s 26(1) strikes a balance between protecting individuals from relevant harms and permitting freedom of communication. However, this does not mean that the same balance must be reached in these different contexts, where the harms which may be caused by the relevant publication are quite different. The harm against which defamation is intended to protect is injury to reputation, while the harm against which s 26(1) is intended to protect is the stigmatisation and interference with the privacy of the child and his or her family caused by identifying them as participants in court proceedings. Secondly, we do not consider that the decisions in Keating and Waters require Victorian courts to apply the ordinary reasonable reader test. In Keating, the newspaper had published two reports about a boy who had been injured by a bomb explosion at his 16th birthday party. It was alleged that he had made the explosive device. The boy was named in both articles and the second article included his photograph. At the time these articles were published, the boy had not been charged and no Children's Court proceedings had been commenced. The issue in the case was whether two later reports published six weeks and two months later in the West Australian, which referred to subsequent Children's Court proceedings, but did not name the boy, had identified him in breach of s 35(1) of the Children's Court of Western Australia Act 1988 (WA). There was nothing in the later article which linked it back to the previous ones. Section 35(1) of that Act prohibited the publication of: a report of any proceedings in the Court, or in any other court on appeal from the Court, containing any particulars or other matter likely to lead to the identification of a child who is concerned in the proceedings— (a) as a person against whom the proceedings are taken … The Full Court of the Western Australian Supreme Court held that the newspaper reports did not breach the section. Murray J, who delivered the primary judgment of the court, referred to the tension between protecting children from "the harmful effects which may ensue following their public identification and exposure to the community" and giving effect to the fact that "the court is a public place and its proceedings should be open to public scrutiny and be able to be reported to the community generally". He said that the purposes of s 35(1) were to resolve this tension: in favour of affording to the child the degree of privacy which precludes that person's identification to the public. And it does so not only by proscribing reports of proceedings which do in fact identify the child, but also those which are likely to do so. The section should be construed so as to facilitate that purpose, whilst not losing sight of the fact that contravention of the section is constituted as a criminal offence in respect of which, before this Court, there are unlimited powers to punish an offender. In that context, I would accept that the capacity for identification which is proscribed is generally by the public, rather than by private individuals who may, by reason of knowledge otherwise acquired, have a particular capacity to identify a child the subject of a report, which the general reader, viewer or listener would not otherwise have. In my opinion, the requirement that the content of the report must be likely to lead to the identification of the child means that, giving the word "likely" its ordinary meaning, but not forgetting the seriousness of the consequences of contravention of the section, it must be established that there was a real or substantial prospect that the report would lead the general reader, viewer or listener to identify the child. … In judging the likelihood that the content of a report of proceedings may lead the general reader, viewer or listener to the identification of a child concerned in the proceedings, I see no reason why regard should not be had to what may be proved to be a general substratum of knowledge, relevant to the report and the proceedings, which may be available to the general reader, viewer or listener as an ordinary member of the public. Murray J said that he could not be satisfied beyond a reasonable doubt that the report would lead to the identification of the child, because it was unlikely that an ordinary reader would be sufficiently interested to recall the identifying details about the child which had been published some six weeks and two months previously. 1. It was on the basis of the foregoing authorities that the plaintiff submitted that identification for the purposes of considering whether s 578A was breached (whether by actual identification of the plaintiff or the publication of matters likely to lead to her identification) is not limited to an enquiry into what the reading public at large would interpret or conclude about the identity of the older child referred to in the articles. While that proposition was largely uncontentious, the parties were in dispute as to when identification of the plaintiff by readers other than the reading public at large would constitute a breach of s 578A. 2. The defendant submitted that the publication of material which would tend to identify or which is likely to lead to the identification of the plaintiff by someone intimately acquainted with her and who knows of her history as a victim of child sexual abuse would not constitute an identification for the purposes of the section. It was accepted, however, that publication of material which would lead to identification (or was likely to do so) of her by a friend or neighbour when that person did not have that information may be sufficient to constitute a breach of s 578A (see Howe v Harvey). The plaintiff submitted that material which identified her by a substantial number of readers within the community of Plymouth Brethren, or which was likely to lead to her identification by members of that community (as the plaintiff contended occurred here), was sufficient to constitute a breach of s 578A. 3. R v W (1998) 1 NZLR 35 was cited in support of that submission. That case concerned a prohibition on the publication of particulars likely to lead to the identification of a victim or complainant in sexual assault proceedings. The Court said, at [40]: Here, what was recorded in the judgment or otherwise already in the public arena in previous reports of the proceedings was that the victim was a 15-year-old schoolboy who had worked after school on two successive afternoons for a 48-year-old professional man in his Palmerston North office. The Judge concluded that to add the name and profession of the [offender] might lead to persons, including school companions, connecting the victim and identifying him with the respondent. This was a clear finding as a matter of judgment that there was an unacceptable risk that publication of the material could lead to the identification of the victim. (Emphasis added.) 1. The plaintiff also referred to XX v Nationwide News Pty Ltd [2010] NSWDC 147. The provision under consideration in that case was s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) which prohibits publication "of any information, picture of other material … that identifies the child or young person, or … that is likely to lead to the identification of the child or young person". Commencing at [19], Gibson DCJ considered the collected authorities in this State and elsewhere on the question of identification and concluded that the "'general reader' test" applied in Keating was not to be followed. I have already noted that the correctness of the approach in Keating had earlier been doubted in Howe v Harvey (an authority upon which the defendants relied). 2. The Western Australia Court of Appeal has since tempered the approach in Keating. In McGinty – a decision which has not, so far as I am aware, been doubted – the Court said (at [25]): [W]hile the ordinary general reader is not one who is closely and intimately connected with the child or the child's family, so as to be able to identify the child from details unlikely to be generally known, such a reader may be a person who lives in the same small town as the child, or who attends or teaches at, or is the parent of a child who attends, the child's school. Once that is appreciated, it can readily be seen that publication of a number of details regarding the child, each in itself unlikely to lead to identification, may in combination have that effect. 1. In light of the authorities, it seems to me that there are three potential or hypothetical readers of the published articles in this case: 1. a general reader, being a person armed with the general substratum of knowledge about the Jensen trial and the context in which the sexual assaults of the two sisters occurred, being information available to any member of the public, who have no particular knowledge of the plaintiff or her family circumstances; 2. a general reader as in (1) above, but who, unlike that reader, possesses actual knowledge about the plaintiff but someone who is not closely or intimately connected with her. That additional knowledge may be derived from the reader actually living or having lived in Albury at the time of the assault or at the time of the criminal trial, or who attended the same school as the plaintiff (whether the general reader is a student, teacher or parent of a student) or a person who shares the same faith as the plaintiff in the community of the Plymouth Brethren 3. a person who is closely and intimately connected with the complainant, and who possesses information about the complainant not generally known. 1. I am satisfied that the prohibition on identification of the plaintiff for the purposes of s 578A applies to persons who comprise category (2); that is readers who have actual knowledge of the plaintiff but are not intimately connected or acquainted with her, including readers who may have lived in Albury at the time of the sexual assaults and learned of the trial from newspaper reports but who did not know of her identity as a complainant. Those persons would also include members of the Plymouth Brethren at the time of the accusations made against Mr Jensen and during his subsequent criminal trial and conviction. 2. Having considered the self-evident policy objectives inherent in the operation of s 578A and its intended scope, I am satisfied that prohibiting publication of material actually identifying, or likely to identify a complainant in prescribed sexual assault proceedings to persons falling within category 2, strikes an appropriate balance between recognition of a complainant's right to privacy and protection, coupled with the expectation that affording that protection will encourage victims of sexual abuse to disclose that abuse to the authorities on the one hand, and the overriding public interest in the principles of open justice and the important role media interests play in publishing matters of legitimate public interest and concern on the other, including, where appropriate, sexual abuse of children within and outside institutional environments. Meaning of "likely" in s 578A(2) 1. It has long been recognised that the word "likely" has different meanings in different statutory contexts. In Attorney-General for the State of New South Wales v Winters [2007] NSWSC 1071, after considering the collected authorities in detail in [33]-[47], McClellan CJ at CL said at [50] as follows: When construing legislation a court must be careful to apply the words of the legislature without imposing an impermissible gloss Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622 at 638 and Victims Compensation Fund Corporation v Brown & Ors (2003) 201 ALR 260 at [33]. However, where the word used by the Parliament has shades of meaning which may alter its impact it is important to identify the meaning which was intended. As the authorities show the meaning of the word "likely" can vary significantly depending on its context. 1. The plaintiff submitted, reliant upon the approach of Mason, Wilson and Deane JJ in Boughey v R (1986) 161 CLR 10; [1986] HCA 29 at [21], that in the context of s 578A(2), the publication of material "likely" to lead to the identification of a complainant should be understood to mean "a substantial being a 'real and not remote' chance" of that occurring. The defendants submitted that "likely" should be taken to mean "probable", with the question being whether the published material would "more probabl[y] than not" lead to the plaintiff being identified as a complainant in prescribed sexual assault proceedings. 2. The Macquarie Dictionary defines "likely" in a way that is more aligned with the meaning proposed by the defendants: 1. probably or apparently doing or destined (to do, be, etc.): likely to happen. 2. seeming like truth, fact, or certainty, or reasonably to be believed or expected; probable: a likely story. 1. In Boughey, in proposing that the appropriate meaning of likely in s 157(1) of the Criminal Code Act 1924 (Tas) was "a substantial - a 'real and not remote' - chance" (that an act will cause death or bodily injury), the Court provided the following rationale: A basic objective of any general codification of the criminal law should be, where practicable, the expression of the elements of an offence in terms which can be comprehended by the citizen who is obliged to observe the law and (where appropriate) by a jury of citizens empanelled to participate in its enforcement. History would indicate that the codifier will never achieve the clarity and completeness which would obviate any need for subsequent interpretation or commentary …The courts should, however, be wary of the danger of frustrating that basic purpose of codification of the criminal law by unnecessarily submerging the ordinary meaning of a commonly used word in a circumfIuence of synonym, gloss and explanation which is more likely to cause than to resolve ambiguity and difficulty. To bury the word "likely" in s. 157(1) of the Code beneath the gloss of "more likely than not" and the explanation of "a more than 50 per cent" or an "odds on" chance would be to succumb to that danger. It would also, in our view, be to attribute to the word "likely" a requirement of a specific degree of mathematical probability which the word does not convey either as a matter of ordinary language or in its context in s. 157(1) of the Code. 1. Earlier, In Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331, Deane J said, at 346: The word 'likely' can, in some contexts, mean 'probably' in the sense in which that word is commonly used by lawyers and laymen, that is to say, more likely than not or more than a 50 per cent chance ... It can also, in an appropriate context, refer to a real or not remote chance or possibility regardless of whether it is less or more than 50 per cent. When used with the latter meaning in a phrase which is descriptive of conduct, the word is equivalent to 'prone', 'with a propensity' or 'liable'. 1. In Keating, the Court considered the meaning of likely in the context of s 35(1) of the Children's Court of Western Australia Act 1988 (WA) which provided that "a person shall not publish … any particulars or other matter likely to lead to the identification of a child". Murray J, with whom Kennedy and White JJ agreed, said in respect of the definition of "likely": … the requirement that the content of the report must be likely to lead to the identification of the child means that, giving the word "likely" its ordinary meaning, but not forgetting the seriousness of the consequences of contravention of the section, it must be establish that there was a real or substantial prospect that the report would lead the general reader, viewer or listener to identify the child. 1. In taking that approach, Murray J expressly endorsed the meaning ascribed to "likely" in Boughey at [21], finding "those words are apposite in this case." 2. In Australian Securities Commission v Nomura International PLC (1998) 89 FCR 301, the two discrete definitions to which Deane J in Tillmans had said "likely" may give rise were considered by Sackville J. There, the plaintiff submitted that "likely" in the provision under consideration (s 998 of the now repealed Corporations Act 1989 (Cth)) referred to there being a real or not remote chance, while the defendant submitted that a greater than 50 per cent chance was required. Sackville J ultimately found that in the section under consideration, "likely" meant "more probable than not" - an analysis that I consider has application in this case. At 395-396 he said: In Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331 (FC), Deane J (at 346), in a well-known passage, said this about the word "likely": "The word 'likely' can, in some context, mean 'probably' in the sense in which that word is commonly used by lawyers and laymen, that is to say, more likely than not or more than a 50 per cent chance ... It can also, in an appropriate context, refer to a real or not remote chance or possibility regardless of whether it is less or more than 50 per cent. When used with the latter meaning in a phrase which is descriptive of conduct, the word is equivalent to 'prone', 'with a propensity' or 'liable'." Nomura submitted that "likely", as used in s 998(1) of the Corporations Law, has the first meaning. The ASIC submitted that the second was the appropriate meaning. In my opinion, the better view is that "likely", as used in s 998(1) of the Corporations Law, means more probable than not. Mr Heydon relied on authorities interpreting "likely" as referring to a real and not remote chance: Tillmanns (construing s 45D(I) of the TP Act); News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 (FC) at 564-565 (s 4D(2) of the TP Act); Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82 (FC) at 87 (s 52(1) of the TP Act). See also Western Australia v Wardley Australia Ltd (1991) 30 FCR 245 (FC) at 261 (s 87 B TP Act); Akron Securities Ltd v Iliffe (1997) 41 NSWLR 353 (NSWCA) at 364 (s 87 TP Act). The form of the provisions considered in these cases was important to the outcome. For example, Deane J in Tillmanns at 347, thought it significant that s 45D(I) proscribed conduct that "would have or be likely to have" a particular effect: see also News at 565. If, in that context, "likely" meant more probable than not, the words "be likely to have" would have had no work to do. Section 998(1) is couched in different terms. The context in which "likely" is used in s 998(1) also tends to support Nomura's contention. A trader commits an offence if he or she creates or does anything intended or likely to create a false or misleading appearance in a relevant respect. The first two alternatives apply if the alleged contravener actually creates the false or misleading appearance or intends to create such an appearance. The ASIC submitted, I think correctly, that the third alternative (conduct "likely to create" the misleading appearance) introduces an objective test into the subsection. Yet, if "likely" means a "real chance", a trader who neither creates nor intends to create a misleading appearance, commits a criminal offence if his or her conduct merely creates a real chance of a misleading appearance. In my opinion, the language of the subsection creates an ambiguity which should be resolved in favour of an alleged contravener. The narrower construction of "likely" does no violence to the object of the legislation, as expounded in North v Marra. 1. In TSL v Secretary to the Department of Justice (2006) 14 VR 109; [2006] VSCA 199, the Victorian Court of Appeal considered the meaning to be ascribed to "likely" in the context of s 11 of the Serious Sex Offenders Monitoring Act 2005 (Vic). The Court found: … the second meaning ["a substantial - a 'real and not remote' - chance", as expressed in Boughey v R] is to be preferred. It is understandable that Parliamentary counsel would have chosen the word "likely" in relation to a future state of affairs but almost inconceivable that Parliament would have intended that word to bear its ordinary meaning. All too many offenders are likely, in that sense, to commit a relevant offence. A person subject to an extended supervision order is a prisoner in all but name. The threshold would be far too low, in a free society, if a court had a discretion to make an extended supervision order simply because it was satisfied that there was "a substantial - a 'real and not remote' - chance" of his or her re-offending. That is why the word "likely" in s 11(1) is used in the sense of a high degree of probability. I desire to guard against misunderstanding. To say that "likely" is used in that sense does not mean that the secretary must prove that it is more likely than not that a person will commit a relevant offence. Likelihood, in the ordinary sense of that word identified in Boughey v R, includes a low degree of probability. What the legislature requires the court to be satisfied of is a high degree of probability. There is no reason to think that it must be more than 50%. With experience, it may be possible to be more precise, but we should always return to the words the legislature has chosen and the context in which they appear. 1. In Attorney General (NSW) v Winters [2007] NSWSC 1071, McClellan CJ at CL considered the meaning of "likely" in the context of ss 9 and 17 of the Crimes (Serious Sex Offenders) Act 2006 (NSW). His Honour found that: …"likely" means "more likely than not" and it is that test which must be applied in ss 9 and 17. For relevant purposes the court must be satisfied to a high degree of probability that it is more likely than not that the offender will commit a further serious sex offence 1. In Tillman v Attorney General (NSW) (2007) 70 NSWLR 448; [2007] NSWCA 327 at [88], Giles and Ipp JJA stated that "there is much to be said for the view expressed by McClellan CJ at CL in Attorney General (NSW) v Winters, (as extracted in the paragraph above). Notwithstanding, their Honours felt constrained by the view expressed in TSL, finding, at [88]: [T]he view expressed in TSL is reasonably open and we are not persuaded that it is clearly wrong. In the light of what has emanated from the High Court [in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89] in regard to the respect that an intermediate appellate court of one Australian jurisdiction should give to a decision of an intermediate appellate court of another Australian jurisdiction on issues that are substantially the same, we would follow and adopt the approach of Callaway AP in TSL. 1. The Victorian Court of Appeal had cause to consider the meaning to be ascribed to "likely" in RJE v Secretary to the Department of Justice (2008) 21 VR 526; [2008] VSCA 265, also in the context of s 11 of the Serious Sex Offenders Monitoring Act 2005 (Vic); the same provision under consideration in TSL. The Court declined to follow TSL, finding, at [533]: [W]e consider that in this context "likely to commit" means "more likely that not to commit". That is, the court must be satisfied that there is a greater than 50% chance that a relevant offence will be committed if the offender is released unsupervised. The previous decision of this court in TSL, holding that a less than 50% chance might suffice for this purpose, should not be followed… 1. The Court also declined to follow the decision of the New South Wales Court of Appeal in Tillman, stating: We have already concluded that we should not follow the decision in TSL on the meaning of the word "likely". Given that the majority judgment in Tillman was itself based on the decision in TSL, and was contrary to the expressed preference of all three judges in that case, we likewise decline to follow Tillman. We conclude, therefore, that on ordinary principles of interpretation the meaning of the word "likely" in s 11(1) of the Monitoring Act is "more likely than not". 1. The Court also said, in a passage that favours the meaning the defendants seek to ascribe to "likely" in the present case, that, on "ordinary principles of construction", a court "should favour that interpretation which produces the least infringement of common law rights". 2. The plaintiff sought to rely on the decision of the New Zealand Court of Appeal in the matter of R v W (1998) 1 NZLR 35. In that case the Court was concerned with the meaning to be ascribed to "likely" in a provision prohibiting, in similar terms to s 578A(2), the publication of "the name, address, or occupation of the person accused or convicted of the offence … or any particulars likely to lead to any such person's identification." Richardson P, with whom Henry and Keith JJ agreed, found that "likely" requires only that there be "the existence of an appreciable risk" of identification. His Honour stated: The exclusive focus of s 139 is on the welfare of the victim. It is the risk to the victim that is protected by the prohibition. The statute assumes that any identification of an under-16 victim is an unacceptable risk to the welfare of the victim. The statutory purpose is to avoid the risk of harm by barring publication. It must be enough to attract s 139 that there is an appreciable risk that publication of the material could lead to the identification of the victim. In that context, qualifying adjectives such as "real", "appreciable", "substantial" and "serious" are not used to set higher or different thresholds, but rather to bring out that the risk or possibility must not be fanciful and cannot be discounted. 1. The plaintiff also referred the Court to O'Riordan v The Director of Public Prosecutions [2005] EWHC 1240, not as support for the meaning of "likely", but for a line of authority culminating in a short extract from the judgment of Dame Butler-Sloss P in Attorney General v Greater Manchester Newspapers (Unreported, England & Wales High Court, Queen's Bench Division, Dame Butler-Sloss P, 4 December 2001). In that case an application was made by the Attorney-General to commit Greater Manchester Newspaper Ltd for contempt on the ground that an injunction, earlier granted by Dame Butler-Sloss P, had been breached when the respondent newspaper caused to be published information that, in the Attorney-General's view, was likely to lead to the identification of two people ("the boys") due to be released from detention. The injunction restrained publication of: (c) any information likely to lead to the identification of the past, present or future whereabouts (including all residential or work addresses and telephone numbers) of the [boys] or either of them since the 18th February 1993, save that the establishments at which either of the Claimants has been held on detention during Her Majesty's pleasure may be identified no earlier than 12 months after the date announced by the Secretary of State for the Home Department as the date by which both Claimants have been released on licence (Emphasis added.) Her Honour observed that the words "likely to lead" was for the protection of the safety of the boys in "recognition of the rights of each boy to the protection of Articles 2 and 3 of the [Convention on the Rights of the Child]". 1. It was in this context that her Honour proceeded to consider the meaning to ascribe to "likely": There will undoubtedly be cases in which the use of the word 'likely' will be properly equated with 'probable'. In other cases it has been used to mean something which could or might well happen. The words have to be seen in the context of the sentence and in the context of the situation in which they are used. In my judgment a detailed consideration of the decisions cited to me does not help me to come to a conclusion in the present case. The purpose of the injunctions is to protect the lives and personal safety of these boys. In the passage from my judgment of the 8th January above, I used the phrase "real possibility that their lives would be at risk." The use of the word 'likely' in the order is not to be equated with statistical probability that it will lead to the identification of the boys or their whereabouts but to the real risk, the real danger, the real chance that it may lead to that dangerous situation. 1. While Attorney General v Greater Manchester Newspapers is of limited precedential value (as is the New Zealand case of R v W considered in [178] and [198]), I am satisfied that the context in which her Honour came to determine the meaning of "likely" is sufficiently distinct from the need to consider "likely" in the context of s 578 of the Crimes Act for the decision to be of limited persuasive force. Consideration 1. Having considered the authorities, including the development of the Australian authorities in recent times, and the context in which "likely" appears in s 578A(2), I am persuaded that the meaning the defendants contend for should be adopted; that is, I am satisfied that the publication of material "likely" to lead to the identification of a complainant means that the material would probably have that effect, in the sense of it being "more probable than not" that a complainant was identified. The line of reasoning ultimately adopted by the Victorian Court of Appeal in RJE, and that of McClellan CJ at CL in Winters, has encouraged me to that view. 2. The decision in Tillman should not be followed as their Honours expressed a preference for the reasoning adopted by McClellan CJ at CL in Winters, but were constrained at that time by the Victorian Court of Appeal's judgment in TSL; a decision the Victorian Court of Appeal has since declined to follow. Was s 578A breached by the defendants? 1. What remains to be considered is whether I am satisfied that there was a breach of s 578A by the defendants' publication of material in the articles that: 1. identified the plaintiff as a complainant in prescribed sexual offence proceedings; ("the first limb") or, 2. was likely to lead to her identification ("the second limb") 1. I am not satisfied that the first limb of the prohibition on publication was breached. That is, I am not satisfied that the articles identified the plaintiff. The Macquarie Dictionary defines "identify" as: 1. to recognise or establish as being a particular person or thing; attest or prove to be as claimed or asserted: to identify handwriting; to identify the bearer of a cheque. 2. to serve as a means of identification for: this card identifies the bearer as a member. … 1. In my view, the first limb of the prohibition was intended to protect against the naming of a complainant or, possibly, the inclusion of a photograph of a complainant, including less overt means of identification (perhaps by reference to the relationship between a complainant and a named offender (as was the case in Jane Doe v ABC). I do not regard the naming of Mr Jensen as the offender as having that capacity. This is to be contrasted with identification of a complainant by a reader who, by their possession of information about a complainant, has reasoned or concluded that he or she was the subjection of the publication. In my view, any broader interpretation of what is comprehended by the first limb would trespass on the second limb which prohibits the publication of material "likely to lead to the identification of" a complainant. 2. Having regard to the findings I have made, I am satisfied the defendants would be in breach of s 578A if the articles contained material which was likely (in the sense of more probable than not) to lead to the identification of the plaintiff by persons who had actual knowledge of her and her family circumstances without being closely or intimately connected with her. On that analysis, I am satisfied that identifying material was contained within the articles for the following reasons: 1. The articles disclosed that the complainants were sisters (the plaintiff had two sisters). 2. The articles disclosed that Mr Jensen was convicting of sexually assaulting both sisters, and that the offending conduct occurred while they resided in a regional town of NSW (the plaintiff lived in Albury at Mr Jensen's home with her sister after her family unit dissolved). 3. The articles disclosed the fact of the plaintiff's father's homosexuality and the circumstances in which he left the family home. I accept that the sexuality of the plaintiff's father was a topic of commentary by the adult members of the Brethren community and that this infiltrated the membership of the Church more generally as children of Brethren families came to learn of the circumstances in which the plaintiff came to move to the Gosford area. In his examination-in-chief, JK deposed to having learnt of the plaintiff's father's sexuality in 2007 at age 14. He recalls having heard "more than once" rumours and conversation about the sexuality of the plaintiff's father. He said the fact of the plaintiff's father's homosexuality was not "the sort of fact" he had previously heard said about other men in the Brethren community. JK accepted that rumours about the plaintiff's father's homosexuality were "commonplace" in the Brethren community and that his sexuality was discussed by reference to the fact that he was the father of the plaintiff (who was either attending JK's school at the time, or was soon to be attending. In either case, the plaintiff's sister was attending the school at the time). 4. The articles disclosed the fact that the mother of the children suffered an "injury". 5. The articles disclosed that the sisters were placed under Mr Jensen's care because her father had left the Brethren community and her mother was unable to care for the plaintiff and her sister by reason of that injury. 1. By reason of the matters identified in the preceding paragraph, and substantially in reliance on the evidence of JK, I am satisfied that a member of the Brethren community who possessed actual knowledge about the plaintiff and her family circumstances but who was not so closely or intimately connected with her so as to have learnt of the fact that she was sexually abused as a child (the position of JK, in contrast to the position of the plaintiff's husband and other witnesses, and her treating doctor), was likely (in the sense of more probable than not) to have identified her as one of the children referred in the article. 2. Despite the articles having been likely to have identified the plaintiff, albeit to what must be a small cohort of readers, since I am not persuaded that s 578A confers a private right to sue for breach of the prohibition on publication, the plaintiff's claim for common law damages fails. Breach of confidence 1. In addition to the plaintiff's claim for damages for what she alleged was the defendants' breach of the statutory duty in s 578A not to identify her as one of the complainants in the trial of Mr Jensen, is the claim that the defendants also breached an equitable duty of confidence owed to her and that she is entitled to be compensated for that breach. 2. In Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21; 265 ALR 28 the Full Court of the Federal Court identified four elements as foundational to establishing an actionable breach of confidence: 1. the information that is said to be confidential must be identified with specificity; 2. the information must have the necessary "quality of confidence"; 3. the information was imparted in circumstances importing an obligation of confidence; 4. there must be an actual or threatened misuse of the information by the defendant without the plaintiff's consent. What is the confidential information the plaintiff contends was published and does it have the necessary quality of confidence? 1. The requirement that the confidential information be identified with specificity was a formulation adopted by the Full Court in Optus Networks following the approach of Gummow J in Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1990) 22 FCR 73 at 87. The Full Federal Court emphasised that: [T]here can be no breach of the equitable obligation unless the Court concludes that a confidence reposed has been abused, that unconscientious use has been made of the information": Smith Kline & French Laboratories (Australia) & Ors v. Department of Community Services & Health, Secretary & Anor [1991] FCA 154; 28 FCR 291; 99 ALR 679 at [51]. 1. In Streetscape Projects (Australia) Pty Ltd v City of Sydney [2013] NSWCA 2 Barrett JA (at [159]-[162]) (Meagher and Ward JJA agreeing), made similar observations. Barrett JA drew particular attention to: 1. the importance of specifying with precision the information said to be confidential; and, 2. the effect of information entering the public domain. 1. His Honour said: 159. The need for specificity in the identification of the information said to be confidential in respect of which relief is sought comes from the fact that the court must make an assessment of the quality of that information, that is, whether it is in truth of a confidential nature. An aspect of that inquiry may turn on whether the whole or some part has become the subject of general disclosure or notoriety. Precise delineation of the subject matter is accordingly essential. The task of a plaintiff, in this respect, is, in the words of Gummow J in Smith Kline & French Laboratories (Australia) Ltd v Department of Community Services and Health (1990) 22 FCR 73 at 87, "to identify with specificity, and not merely in global terms, that which is said to be the information in question". … 162. The fact that information that was confidential when obtained has later entered the public domain means that its confidential quality is lost. In Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, Lord Goff explained (at 282) that "public domain", for these purposes, means "no more than that the information in question is so generally accessible that, in all the circumstances, it cannot be regarded as confidential". (Emphasis added.) 1. These statements were approved by Beazley P (Macfarlan and Emmett JJA agreeing) in Marshall v Prescott [2015] NSWCA 110 at [50]-[57]. 2. In par 24 of the plaintiff's statement of claim the "confidential information" said to have been published by the defendants in breach of the duty of confidence they owed to her was identified, with specificity, as follows: 1. that she was a child victim of repeated sexual abuse; 2. that the sexual abuse took place whilst she was in the care of her abuser; 3. that the sexual abuse took place within the closed religious community of the Exclusive Brethren within which they both lived; 4. her handwritten note. 1. The identification of what is contended to be "confidential information" has allowed an assessment to be made as to whether the "information" is of a confidential nature, together with an assessment as to whether, as Barrett JA expressed, it "the whole or some part [of the information] has become the subject of general disclosure or notoriety". 2. In essence, it was the plaintiff's case, as formulated in closing submissions, that the information in (a)-(c) is confidential information because it concerns her status as a victim of child sexual assault. The handwritten note in (d) is in a different category. It was her case that the note was personal to her because of the context in which it was written, and the duress to which she was subject when she wrote it (including under dictation from Mr Jensen), such that the note was, as her counsel described it, "confidential in and of itself". 3. As concerns the confidential information nominated as such in (a)-(c) above, the plaintiff also accepted that the alleged disclosure of that information depended upon the article actually identifying her as the elder of the sisters sexually abused by Mr Jensen. The plaintiff's counsel also accepted the self-evident proposition that because none of the pieces of information in (a)-(c) have any connection to the plaintiff in the abstract, they do not have a confidential character in the abstract. In his closing submissions the position of the plaintiff was put as follows: Where [these matters] become confidential is because of the integer of the plaintiff … [T]here is no breach of confidence unless there is identification [of her] and that's put by the defendants in their submissions and we accept it. 1. Since the plaintiff did not advance the case that her identity as a victim of child sexual assault was a conclusion reached by readers who were able to deduce that she was the person referred to in the article because they were already possessed of some or all of the confidential information (or for that matter other information about her), the disclosure of the confidential information in (a)-(c) must be taken to mean that the articles actually revealed that the plaintiff, and not some unidentified child, was the victim of child sexual assault by revealing or disclosing information that the reader did not previously know about her. This is consistent with Nakhl Nasr v State of New South Wales; George Nasr v State of New South Wales [2007] NSWCA 101 at [127] where the Court of Appeal approved statements to the effect that "disclosure" involves making known to a person information that that person did not previously know. 2. The defendants also submitted, correctly in my view, that the statutory language in s 578A(2) where the prohibition also applies to the publication of material being "likely to lead to the identification" of the plaintiff as a complainant in sexual assault proceedings had no application in the claim she brings for equitable compensation. The defendants emphasised, as they did when meeting the plaintiff's claim for common law damages, that the articles do not name the plaintiff, her sister or any member of her family and that the note, as published, redacts her name and that of her grandfather. The only person named in the articles was Mr Jensen. Furthermore, the articles contain no photograph of the plaintiff nor anyone associated with her, and the name of the "regional town" where she lived is not named. In all respects, the defendants submitted, the article observes essentially the same precautions against the risk of identification as the publicly available remarks on sentence by Murrell SC DCJ (R v Lindsay Ronald Jensen [2007] NSWDC 15) on 16 January 2007, the press coverage of the trial in December 2006, and the sentence proceedings the following year (extracted at length above). 3. Aside from the defendants' submission that the articles manifestly do not identify the plaintiff (reflecting what was said to be the defendant's awareness of the prohibition in s 578A on identifying her or publishing material likely to lead to her identification as a complainant in a prescribed sexual assault proceeding), the defendants' foundational submission was that information adduced in open court, whether it is tendered in evidence or otherwise disclosed in the course of the proceedings, does not, by its nature, have the necessary "quality of confidence" to support a claim for breach of confidence. It follows, in the defendants' submission, that information that is the subject of proceedings conducted in open court cannot be "confidential", and that any claim to the contrary is inimical to the principles of open justice. It was the defendants' case that all of the information in (a)-(d) was information adduced in evidence at the Jensen trial and, subject only to the non-publication orders issued by the trial judge and the operation of s 578A of the Crimes Act, it was information in the public domain and available to be reported upon by media interests. 4. Adherence to and promotion of the principle of open justice has been so frequently reaffirmed as fundamental in common law jurisdictions it hardly needs re-stating. In Commissioner of Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5, the High Court at [44] stated that: The rationale of the open court principle is that court proceedings should be subjected to public and professional scrutiny, and courts will not act contrary to the principle save in exceptional circumstances. 1. The NSW Court of Appeal adopted that approach in Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403. While the Court was concerned with a question of statutory construction, the observations of Bathurst CJ and McColl JA at [26] remain apposite: The principle of legality favours a construction of legislation such as the CSNPO Act which, consistently with the statutory scheme, has the least adverse impact upon the open justice principle and common law freedom of speech and, where constructional choices are open, so as to minimise its intrusion upon that principle: Hogan v Hinch at [5], [27] (French CJ); see also Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 55 (Kirby P). 1. Subject to the intrusion of statute where the principle of open justice is restricted for competing public policy imperatives (as is the case with s 578A), the public importance of fair and accurate coverage of criminal trials by the media is clear. It was endorsed by Murrell SC DCJ when she refused an application by the plaintiff's mother under s 292 of the Criminal Procedure Act that there be no publication of the trial transcript In R v Lindsay Ronald Jensen, District Court, Murrell DCJ, 18 December 2006, her Honour said (at [7]-[8]): 7. There is a strong public interest in matters of child sexual assault being publicised in a way that does not identify particular victims. It is through publication of such matters that the public gains an understanding of the nature and extent of child sexual abuse in the community. The publication of such matters can assist the public to understand about child sexual assault and can serve to encourage other victims to come forward. 8. Therefore, I determine, first, that the victim has no [standing] to make this [application], and, second, that, if she had standing, the application should be refused. 1. The defendants also referred to Johns v Australian Securities Commission (1993) 178 CLR 408; [1993] HCA 56 which concerned the validity of a decision to release transcripts of compulsory examinations in a public hearing of a Royal Commission and whether, once in the public domain, the confidentiality attaching to the transcripts was lost such that equitable relief was not available to the examinees. At 432, Brennan J said as follows: There remains the question of the relief against H.W.T. and the A.B.C. Counsel for Mr. Johns submits that, as the information contained in the transcripts has not been generally disseminated by the media and as the Royal Commission imposed a ban on further dissemination, the information is not in the public domain. In support of this submission, counsel cited passages from cases in which the courts have acknowledged that relief can be given to restrain a defendant from publishing confidential information after some limited publication has occurred. A defendant who, having received information in circumstances which impose a duty of confidence, makes a limited publication in breach of that duty, can be restrained from further breaching the duty by making a wider publication. But that is not the present case. Here the transcripts were exhibits tendered before the Royal Commission sitting in public. H.W.T. and the A.B.C. obtained copies of the exhibits as documents already in the public domain. When the proceedings of a court, tribunal or commission created by statute or in exercise of the prerogative are open to the public and a fair report of the proceedings can lawfully be published generally, it is not possible to regard information published in those proceedings as outside the public domain. Information published in those circumstances enters the public domain by a lawful gate. Once in the public domain, it can be freely used or disseminated. Information obtained by the media in this way is not "imparted so as to import an obligation of confidence": The Commonwealth v John Fairfax & Sons Ltd, per Mason J. In such a case, the public domain is not measured by the extent of media reporting. If media reporting were the measure of the public domain in relation to information published in such proceedings, the defamation laws would have to be reformulated. It is unnecessary to consider the question whether a defendant to whom information was imparted in circumstances which imposed an obligation of confidence can, by a wide publication of the information in breach of that obligation, avail himself of a defence that the information is thereafter in the public domain. This case concerns information which was already in the public domain at the time when H.W.T. and the A.B.C. acquired it. In Marcel v Commissioner of Police of the Metropolis, Browne-Wilkinson V.-C. said: [T]here can be no breach of the duty of confidence once the information or documents are in the public domain and the confidentiality has therefore disappeared. In the case of the … documents which have been read in open court, they have now lost their confidentiality by disclosure in open court." Accordingly, no obligation of confidence was imposed on H.W.T. or on the A.B.C. either by equity or by the Act. 1. At 463, in what might be interpreted as a more nuanced approach, Gaudron J said: Moreover, it is not axiomatic, in my view, that the transcripts entered into the public domain, in the sense that they lost their necessary quality of confidence, when tendered in the public proceedings of the Royal Commission. I can see much force in the view that no confidence attaches to material which is admitted into evidence in judicial proceedings, unless, of course, an order is made against publication. But it is not apparent that, in this regard, a Royal Commission is in the same position as a court. Royal Commissions usually operate ad hoc and their proceedings need not be public. Moreover in this case, the Royal Commission returned the transcripts to the A.S.C. on completion of its report, without making use of them in any way that presently permits of their contents being discovered and having earlier made an order against their further publication. Of course, if that order was within power, the question of confidentiality is largely, if not entirely, academic; but if beyond power, that is another reason for not equating the proceedings of a Royal Commission with those of a court. 1. In Missingham v Shamim [2012] NSWSC 288 Ward J (as her Honour then was) had occasion to consider the impact of Johns v Australian Securities Commission in proceedings where the plaintiff sought a permanent injunction to restrain the defendant from publishing information concerning the settlement of earlier Court proceedings, and the contents of the Deed of Settlement entered into in connection with those proceedings, other than as provided for in that Deed. One of the bases upon which the defendant resisted the granting of a permanent injunction was that since the relevant information had been posted on the NSW Caselaw website in a judgment, there was insufficient confidentiality in the information to be protected by the grant of injunctive relief. Her Honour distinguished the situation where there is an equitable obligation of confidence (the retention of the quality of confidence in material that has entered the public domain being essential to sustain a claim for equitable relief) and where the obligation of confidence is imposed by way of contract. In the latter case, as her Honour observed, whether the obligation attaches is a question of fact and degree. Her Honour said: [62] I remain of the view that the question whether information has entered the public domain to such an extent as to permit its disclosure in the face of a contractual prohibition against disclosure is a question of fact and degree, taking into account the circumstances and the extent of any existing publication of the information. If only limited publication has occurred, and if relative secrecy remains, then the information may well retain its confidential character sufficient to make enforcement of that contractual obligation a matter of utility. Burchett AJ, in Artedomus v Del Casale [2006] NSWSC 146, referred to the statement in Cross, The Law of Intellectual Property: Copyright, Designs and Confidential Information Vol 2 section 25-85, that a claim for breach of confidence "is not to be defeated simply by proving that there are other people in the world who know the facts in question besides the man as to whom it is said that his disclosure would be a breach of confidence and those to whom he has disclosed them". [63] In Johns v ASC (1992) 178 CLR 408, the concept of confidential information entering the "public domain" was considered by Gaudron J (at 460-462) in the context of the question whether there is or should be a duty of confidence imposed on third parties (a question which her Honour considered must depend, at least in part, on the extent to which the information in question is generally known or available). Her Honour noted that there were two distinct aspects of the notion of "public domain" (the first concerned with the question whether any duty of confidence arises and the second with whether it has come to an end) and that the concept of "public domain", in relation to the law of confidence, was primarily significant by reason of the fact that no obligation of confidence (there referring to the situation where an equitable obligation of confidence might arise) and, hence, no right to confidence can come into existence unless the information involved has "the necessary quality of confidence". Her Honour went on to say that where there is a question whether an obligation of confidence is extinguished because of subsequent publication to the world at large by third parties or, even, by the person who owed the duty in the first place, and it is said that the information has passed into the public domain, "The question that then arises is, in essence, whether the information has lost its confidential quality. And as already pointed out, that is largely a question of fact". [64] Although in that case Brennan J, with whom Dawson J agreed, was of the view that: When the proceedings of a court, tribunal or commission created by statute or in exercise of the prerogative are open to the public and a fair report of the proceedings can lawfully be published generally, it is not possible to regard information published in those proceedings as outside the public domain (Home Office v Harman [1983] AC 280, at pp 303, 312). Information published in those circumstances enters the public domain by a lawful gate. [T]he balance of that passage refers to the use of such information on the basis that it has not been "imparted so as to import an obligation of confidence". Here, what is sought to be restrained is not the media report of proceedings in open court but breach of a confidentiality obligation on the part of a party to a settlement deed in circumstances where there is no evidence that there has been any wide publication of the contents of the judgment (and where the material in the judgment itself did not span the whole of the material that seems to me to be confidential under the deed itself). 1. Her Honour went on to find that there had not been disclosure at large of the information said to be confidential such as to destroy confidentiality in it or to lead to the exercise of discretion against the grant of a permanent injunction. At [68] her Honour said: I have concluded that the inclusion of some of the terms of the settlement deed in the ex tempore judgment posted on the Court's website is at most a limited publication. I am not satisfied that it is to such an extent as necessarily to deprive the confidentiality obligation in the deed of any utility. There is no evidence that it has been accessed on a widespread basis since it was posted or by whom that access has been made. I accept that the Court should be astute not to deprive Mr Missingham of relief by reason of a limited publication in which he played no part (and which arose by reason of his invocation of the court processes in order to preserve the value of that very confidentiality). 1. In seeking to persuade the Court to find that despite the media coverage of the trial and the attention given to it in the book written by the second defendant, and despite the publicly available sentencing remarks of Murrell SC DCJ, "relative secrecy" attached to her identity as a victim of child sexual assault, the plaintiff submitted that the degree of accessibility to the material which the defendant identified as in the public domain is unmeasured and, for that reason, it cannot be assumed that the dissemination of the information was so widespread that the plaintiff's identity as one of the children sexually abused by Mr Jensen, and the note she wrote retracting the allegations, are of such notoriety, or so squarely in the public domain, that the quality of confidence (concerning her identity as victim of child sexual assault) is lost. The defendants did not seek to prove the extent of publication of the confidential information, but merely the fact that it occurred and the various forms of media that were the source of that dissemination. The resolution of that question aside, it remained the settled position between the parties that the plaintiff's claim for equitable relief will fail unless she makes good her contention that the articles published actually identified her as one of the children sexually abused by Mr Jensen since it is only by that conduct that the plaintiff can maintain the submission that they have breached their duty of confidentially to her. 2. The plaintiff submitted that this Court would take the same approach Hampel J took in Jane Doe v ABC where at [131] her Honour rejected the submission that because the plaintiff's identity had been published in open court the information concerning her identity had lost the necessary quality of confidentiality. As I have already observed, that case is vastly different from this case if for no other reason than the defendant publishers actually named the plaintiff and, in that way, positively identified her as the victim of the sexual assault by her husband. In addition, the defendant publishers admitted that they breached the prohibition on publication in s 4(1A) of the Judicial Proceedings Reports Act. Were the defendants in this case to have flagrantly breached the prohibition in s 578A on the public revelation of the plaintiff's identity as a victim of child sexual assault (in fact in any case where a person's sexual history or highly sexualised photographs, be that of a child or an adult, are published without authority or consent) I have no doubt that a case might be mounted for the equitable relief the plaintiff seeks. However, a quite different factual scenario is under consideration here. The defendants deny breach of s 578A. It is their case that the information identified and relied upon by the plaintiff as the "confidential information" does not identify her as a victim of child sexual assault, any more than the same or similar information in media reports, the sentencing judgment or the account of the abuse in the second defendant's book has that effect. 3. Having already found, as a matter of fact, that even were I satisfied that a right to sue for breach of statutory duty should be inferred from the terms of s 578A (which I was not), there was no actual identification of the plaintiff in the subject articles (even if there might have been material that was likely to lead to her identification by people sufficiently familiar with her life circumstances to draw that conclusion), her claim for equitable relief based on disclosure of what was said to be the confidential information in (a)-(c) fails. 4. What remains to be considered is whether the plaintiff can make out a case for equitable compensation based solely upon publication of "the note" (the confidential information in (d) in [216] above). 5. The plaintiff submitted that even were there no link to the plaintiff by the terms of the note, its publication is nonetheless capable of constituting a breach of the defendant's duty of confidence because the note is capable of bearing the quality of confidentiality essential to the equitable relief the plaintiff seeks. In this context the plaintiff submitted that the simple tender of the note and its admission into evidence in Mr Jensen's trial did not deprive it of the character of an "intensely private document", there being no evidence in the proceedings before me that the content of the note was known to anyone other than the parties to the trial (and it would seem the plaintiffs mother and probably her father and then later her treating doctor) until such time as the second defendant was granted access to it as part of the materials within the court file. 6. There was controversy as to whether the plaintiff could make a case for breach of confidence where the information in the note does not meet the test for confidential information because it does not identify her as a victim of sexual assault (as plainly it does not given the deliberate redaction of her name and that of her grandfather by the defendants prior to publication). The plaintiff submitted that it is open to this Court to find that it is the reproduction of the handwritten note, in a photographic form, in the context of the article about the plaintiff and how she came to write it, to which confidentiality is said to attach. 7. I am not satisfied that the information in the note (that is the text) is information to which an obligation of confidence attaches, if for no other reason than it was a document to which the second defendant was given access for the stated purpose of potentially using the information as a journalist. The only restriction which applied to his entitlement to "use" the note was that it not be photocopied. The further question then arises as to whether I am persuaded that the photographic image of the note is of such a "confidential quality" in itself that to publish it was, in effect, to publish a confidential communication between a victim of sexual assault and her abuser that would warrant the intervention of equity. 8. In final submissions the plaintiff's case was that the second defendant must have appreciated, at the very least when he found the original note in the court file in 2016, that it was created in a very particular context, namely by a child who had been the subject of sexual assault by an elder of the Church and who had written the note at the direction of the man who abused her, or his agents, and that the note was (and the second defendant should have known it was), as the plaintiff's senior counsel described it: A violation of an interest that was intensely personal to her, the disclosure of which was humiliating and for that reason precisely the sort of interest which the modern cases of breach of confidence enable the court to protect against. 1. Whether the second defendant gained the knowledge about the provenance of the note from his reading of the trial transcript at the point in the trial when the note was tendered, or perhaps in counsels' addresses about the probative weight of the note as evidence, or whether he gained that knowledge from information provided to him by the child's father (an inference that squarely arises from the attribution of the footnote in the book written by the second defendant) is not to the point. The question is whether there is any relevant analogy to be drawn between the publication of the note as an image and a line of authority to which the plaintiff referred where, notwithstanding the absence of what might be referred to as "a classical relationship of confidence", the Court will impose an obligation of confidence on the recipient or possessor of information where the circumstances in which access was gained to it imports that obligation. In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63, at [34], Gleeson CJ accepted that "equity may impose obligations of confidentiality even though there is no imparting of information in circumstances of trust and confidence. 2. The plaintiff referred to Campbell v MGN Ltd [2004] 2 AC 457 in which the House of Lords awarded damages for breach of confidence against a newspaper which published details of a female model's attendance at Narcotics Anonymous and a photograph of her leaving the premises where the meeting was convened, and to Giller v Procopets [2008] VSCA 236; (2008) 24 VR 1 as examples of circumstances in which equity may intervene. 3. In my view, neither case support the attribution to the second defendant of a duty of confidence not to reproduce a photograph of the note in the published article, in circumstances where the note does not, in any relevant sense, identify the plaintiff as its author, as distinct from it being referable to an unidentified child having written it at the behest of her abuser. This is in stark contrast to the photographic images of the plaintiff in each of the cases upon which the plaintiff relied where the very fact of the photographs and the circumstances in which the plaintiff was clearly represented in them was relied upon as importing the quality of confidentiality. Another point of distinction between those cases and this case is that the Registrar granted access to the court file to a person who declared that his interest in the court file was as a journalist. While access was confined to reading the materials in the file, and it must be assumed reproducing their contents but by means other than photocopy or photography, including, for example, by notetaking for the purposes of accurate reporting of the court proceedings, and while it is also clear that the second defendant took a photograph of the note contrary to the terms upon which access was granted, that does not persuade me that the information comprised in the note, including the form in which it was written, was "surreptitiously obtained" or so inherently confidential that it would be "unconscientious" for the second defendant to be relieved of respecting the plaintiff's confidentiality as its author. 4. In Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWCA 430; (2012) 295 ALR 348 Campbell JA (with whom Macfarlan JA agreed), said the following (at [100]): Coco … does not provide an exhaustive statement of when equity will hold that an obligation of confidence has arisen. Of confidentiality as the Even if there is no entrusting of confidential information by A to B in circumstances of confidence, there can sometimes be an obligation of confidence that attaches to information that is inherently confidential or private if that information is illegally or surreptitiously obtained, or is come across in the street, or is received unsolicited: ABC v Lenah Game Meats (2001) 208 CLR 199 at [34]–[36] per Gleeson CJ; [123] per Gummow and Hayne JJ (Gaudron J agreeing); [169]–[170] per Kirby J; [223], [306] per Callinan J (dissenting as to the result); Franklin v Giddens [1978] Qd R 72 esp at 79–80; Sullivan v Sclanders (2000) 77 SASR 419 at [50]–[51], Campbell v MGN Ltd [2004] UKHL 22 ; 2 AC 457 at [14], [47],[85], [166]; Douglas v Hello! Ltd (No 3) [2006] QB 125). In such a case there is "an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained." (Per Deane J, Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414 at 438. 1. In comments that are apposite to the plaintiff's case, his Honour went on to say: An obligation of confidentiality can be recognised even if there is no particular relationship between the parties and no deliberate malfeasance, but where a person receives information that, by virtue of the circumstances in which it is received, he or she knows or ought to know is confidential (see Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 281; Campbell at [14]; Trevorrow v South Australia (No 4) [2006] SASC 42 ; (2006) 94 SASR 64 at 74 [39] (Doyle CJ), 80–81 [80] (Debelle J) and 90 [118] (White J); West Australian Newspapers v Bond [2009] WASCA 127; (2009) 40 WAR 164 at [42]). The basis upon which equity intervenes in such circumstances is by deciding whether, in all the circumstances, it would be unconscientious for the recipient of the information to decline to respect the confidentiality of the information: ABC v Lenah at [45] per Gleeson CJ; [172]–[175] per Kirby J. That can depend not only on what the recipient knew at the time of receiving the information, but also on what the recipient has come to know by the time the court is considering whether or not to grant the remedy: ABC v Lenah at [46]; Johns v Australian Securities Commission (1993) 178 CLR 408 at 459–460 per Gaudron J. 1. The plaintiff alleges that the confidential information in each of (a)-(d) was not only imparted to the defendants in circumstances importing an obligation of confidence, because a reasonable person in his position would have recognised that the information to which he was given access, including the form of the note, was in confidence, but because of the second defendant's obligation (and that of the first defendant) to adhere to the terms of the suppression order made by the trial judge and to abide by the legislative requirement in s 578A(2) that the plaintiff not be identified as a complainant in prescribed proceedings. In circumstances where it was clear that the plaintiff had not consented to publication of her identity as a victim of child sexual abuse, and the judge had not authorised disclosure of the plaintiff's identity as a complainant in prescribed proceedings under s 578A(4), the plaintiff submitted that she is entitled to compensation for breach of the defendants' equitable duty. 2. The defendants submitted that just as there is no private right to sue at common law for breach of the statutory prohibition enacted by s 578A, there is no equitable right of redress for breach of what is said to be an equitable duty not to contravene that same prohibition. I accept that submission. Breach of suppression order 1. The plaintiff contends that the publication of the articles by the defendants was in breach of the suppression order made by Knight DCJ on 13 April 2017. The suppression orders made by his Honour are set out at [30] above. 2. I am not satisfied that the plaintiff has made out a case that the defendants breached the suppression orders made by Knight DCJ in any relevant respect. There is no publication of evidence as to the "particular manner" in which the plaintiff was assaulted by Mr Jensen nor has evidence of her emotional and physical reactions to Mr Jensen's sexual conduct been published. Similarly there is no evidence that publication of material annexed to the affidavit of Ms Purches occurred, and, while the note was in evidence in the criminal trial, I am unable to see how it could be sensibly construed as evidence "of the attacks made on the personal character" of the plaintiff. Orders 1. Accordingly, I make the following orders: 1. Verdict for the defendants. 2. The plaintiff is to pay the defendants' costs. ********** 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: 06 February 2019