Supreme Court New South Wales Medium Neutral Citation: BDN v McCoy [2019] NSWSC 1723 Hearing dates: 4 December 2019 Decision date: 04 December 2019 Jurisdiction: Common Law Before: Adamson J Decision: See paragraph [9] Catchwords: SUPPRESSION AND NON-PUBLICATION ORDER –public interest in victims of alleged sexual assaults not being prevented from litigating claims because of fear that principles of open justice will expose them to psychological harm and embarrassment – orders made Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW), ss 6, 7, 8, 12 Category: Procedural and other rulings Parties: BDN (Plaintiff) Brian McCoy (Defendant) Representation: Counsel: K Lance, solicitor (Plaintiff) S Screnci, solicitor (Defendant) Solicitors: Koffels Solicitors (Plaintiff) Minter Ellison (Defendant) File Number(s): 2019/357993 Judgment – ex tempore 1. The plaintiff, by notice of motion filed on 14 November 2019, seeks orders pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act) that the name and identity of the plaintiff be suppressed, except as may be necessary for the proper conduct of the proceedings. The circumstances in which this application has been made can be briefly stated. 2. The plaintiff, who was born in 1965, was a student at St Ignatius College Riverview in the 1970s, and then again for a period in the 1980s. The plaintiff alleges that he suffered sexual abuse and was sexually assaulted by two boarding masters at that school. 3. Mr Koffel, the plaintiff's solicitor, deposed in his affidavit sworn 13 November 2019 that the plaintiff would prefer to proceed by way of a pseudonym as the publication, or disclosure, of his name or identity would cause him distress, embarrassment and possibly psychological harm. He has requested that information and personal details of the abuse remain private and confidential, given the very personal and sensitive nature of the claim. The plaintiff has two children, one an infant and the other a much older child. He is also concerned for their safety and well-being. 4. The grounds pursuant to which the orders are sought are that the order is necessary to prevent prejudice to the proper administration of justice (s 8(1)(a)); and that it is otherwise necessary in the public interest for the order to be made, and that the public interest significantly outweighs the public interest in open justice (s 8(1)(e)). 5. I am required by s 6 of the Act, when deciding whether to make a suppression order or non-publication order, to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. The power to make orders derives from s 7 of the Act. 6. I am satisfied that it is necessary to make orders on the grounds set out in s 8(1)(e) of the Act because I consider it to be necessary in the public interest for the order to be made, and that the public interest significantly outweighs the public interest in open justice. The public interest in open justice will be served by the circumstance that the proceedings will be heard in open court. The only diminution to that principle will be that the identity of the plaintiff will be covered by a pseudonym so that he cannot be identified. 7. There is a very significant public interest in victims of alleged sexual assaults not being prevented from litigating their claims because of fear that the principles of open justice will expose them to further psychological harm and embarrassment by litigating their claims. In these circumstances, I consider the public interest in not dissuading claims being brought outweighs the public interest in open justice. 8. The Act requires me to make an order for no longer than is reasonably necessary to achieve the purpose for which it is made: s 12 of the Act. In the circumstances of the present case, it does not appear to me that there is any sensible or appropriate end date for any order which I may make given the plaintiff's circumstances and the reasons for the application. I am satisfied that it is appropriate to make the order until further order as provided for in the minute of order annexed to the plaintiff's notice of motion. 9. For these reasons, I am satisfied that it is appropriate to make the following orders in terms of the minute of order. 1. Order, until further order, that the Plaintiff in these proceedings: 1. be known as "BDN"; 2. be described in all pleadings and other documents filed or served in the proceedings as "BDN"; and 3. except as may be necessary for the proper conduct of the proceedings, be only referred to as "BDN". 1. Order that the name of the proceedings be changed so that the proceedings be referred to as BDN – v –Brian McCoy 2. Order, until further order, pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), that the name and identity of the Plaintiff be suppressed except as may be necessary for the proper conduct of these proceedings, upon the grounds that the order is necessary to prevent prejudice to the proper administration of justice and in relation to the public interest pursuant to Sections 8(1)(a) and 8(1)(e) of the Act. 3. Order that the order is to apply throughout the Commonwealth of Australia. ********** 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: 05 December 2019