Haddad v The GEO Group Australia Pty Ltd (No 2)

1. [1]

   THE COURT: On 5 June 2024 this Court handed down its decision rejecting the appellant’s appeal from a decision of a presidential member of the Personal Injury Commission (PIC): Haddad v The GEO Group Australia Pty Ltd [2024] NSWCA 135. The appellant has made an informal application that his name be replaced by a pseudonym. The Court has treated this as an application under the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act).

2. [2]

   The application is rejected.

Context

1. [3]

   The issue of the manner of identification of the appellant was raised by the Court at the outset of the hearing of the appeal. Counsel then appearing for the appellant explained that “there was a determination made in the Commission in November 2021 that the identity of the applicant, as he was called below be de-identified”. He said:

2. [4]

   When the Court noted that there was no copy of any such PIC order in the materials before it, counsel for the appellant said “[p]erhaps if we could have leave to provide the Court with a note, a copy of that in due course”. He was given permission for that to occur. Senior counsel for the respondent then said the following on the issue:

3. [5]

   No copy of any orders made below, nor note addressing the issue, was provided on behalf of the appellant. Nor was any application made in this Court under the Act, prior to publication of its judgment, for an order that the appellant be referred to by pseudonym or that his identity otherwise be made the subject of a non-publication order (NPO).

4. [6]

   In this context the Court noted at [4] of its judgment that although the appellant was referred to by a pseudonym in the PIC proceeding no application had been made for any such order in the appeal, and proceeded to identify him by name.

5. [7]

   On the day after this Court handed down its judgment an email was sent by the appellant’s solicitor which said:

6. [8]

   The assumption referred to was unwarranted, in particular given what had transpired in the hearing of the appeal.

7. [9]

   The solicitor forwarded the submissions on the issue that had been provided to the PIC. In response, sent that day, the Court indicated that a formal application for a non-publication order should be made if such an order was sought, supported by any relevant evidence, including up-to-date medical evidence if applicable. No such application was made. However, on 27 June 2024 an email was sent to the Court directly by the appellant, which included the following:

8. [10]

   In response, an email was sent to the appellant on behalf of the Court the next day, which relevantly said:

9. [11]

   The appellant responded that night with an email, which relevantly said:

10. [12]

    The email then included links to a range of websites in which this Court’s decision in the matter was referred to. Attached to the email was a medical certificate by a treating psychiatrist indicating that the appellant suffered from post-traumatic stress disorder (PTSD) along with a major depressive disorder, and these were chronic and enduring such as to render him with a total and permanent disability.

11. [13]

    Also attached to the email was a copy of a decision of Member Brittliff of the PIC dated 21 November 2022 making a de-identification direction pursuant to r 132 of the Personal Injury Commission Rules 2021 (NSW). Member Brittliff’s decision related to a decision of the PIC by Member Read, which decision was appealed to a presidential member, from which decision the appeal was brought in this Court.

12. [14]

    An email was then sent on behalf of the Court giving the respondent an opportunity until 5 July 2024 to make any submissions on the issue, after which time a decision would be made on the papers. The respondent did provide such submissions which did not take a position on the application but which helpfully outlined relevant factual and legal issues for the assistance of the Court. The respondent also provided documentary evidence annexed to a solicitor’s affidavit. That material indicates that prior to the decision of Member Brittliff the Commission had refused an application to de-identify the appellant in an earlier decision of a presidential member, handed down on 28 June 2022: Haddad v The GEO Group Australia Pty Ltd [2022] NSWPICPD 23. That decision is publicly available and records that the appellant had indicated that he suffered from PTSD and “major depression”.

Determination

1. [15]

   The direction made by Member Brittliff in the PIC was expressed in these terms:

2. [16]

   Such an order had been opposed by the respondent below on the principal basis that an application for de-identification had been denied in the earlier related PIC proceedings, and that there had been no material changes since that decision. However, Member Brittliff was persuaded that based on the evidence presented to her such an order was warranted with respect to Member Read’s decision:

3. [17]

   The member relied on paragraphs (c) and (e) of r 132(4) of the Personal Injury Commission Rules, which respectively refer to “the safety, health and wellbeing of a person affected or named by the publishable decision”, and “whether it is necessary in the public interest for the direction to be given and whether the public interest in giving the direction significantly outweighs the public interest in open justice”.

4. [18]

   The member’s direction spoke only to identification of an identified decision given in the PIC. It did not and could not address how the appellant should be identified in this Court.

5. [19]

   The criteria for making such an order in this Court are set out in the Act:

6. [20]

   As has been emphasised many times, all of the criteria in s 8(1) are expressed in terms of whether an order is “necessary”. It can be accepted that that notion must be construed in the context of each particular paragraph of s 8(1): Council of New South Wales Bar Association v EFA (A Pseudonym) [2021] NSWCA 339; (2021) 106 NSWLR 383 at [219]-[220]. Nevertheless, as the High Court said in a related context, “necessary” is “a strong word” and requires more than that an order be found to be “convenient, reasonable or sensible, or to serve some notion of the public interest”: Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at [30] and [31]. It is implicit in the Act that significant weight is to be afforded to the principle of open justice: Misrachi v Public Guardian [2019] NSWCA 67 at [11]; DRJ v Commissioner of Victims Rights [2020] NSWCA 136 at [30]. This Court has emphasised the importance of any application under the Act being supported by cogent evidence: Kostov v YPOL Pty Ltd (No 2) [2019] NSWCA 1 at [14]-[16]; Misrachi at [10].

7. [21]

   In the course of ordinary life physical or mental health conditions are generally regarded as private and confidential matters. But litigation is, in general, a public process. Such conditions are frequently disclosed in the course of cases brought in courts or tribunals. If a case is brought involving such matters then it can be expected that they will be addressed in an open manner. For some contrary position to be adopted, in proceedings to which the Act applies, the applicant must establish a sufficient necessity of the kind identified in s 8.

8. [22]

   Here it can be inferred that the appellant seeks to rely in substance on the criterion identified in s 8(1)(c), namely that a pseudonym order is necessary to protect his safety. That criterion extends to consideration of psychological safety: DRJ at [29].

9. [23]

   The one piece of medical evidence provided to this Court establishes that the appellant has mental health conditions, namely PTSD and a major depressive disorder. The submissions that were put to the PIC suggested that he also suffers from hypervigilance and a genuine if paranoid fear for the safety of himself and his family. He has had fears that he is being followed. The submissions to the PIC referred to medical reports in support of these claims. We have not been provided with copies of those medical reports and these points are not supported by the certificate provided to us. However, for current purposes we are prepared to give the appellant the benefit of the doubt and accept that, at least in the past, he has suffered from the afflictions described.

10. [24]

    Even making generous allowance for the claims made by the appellant, we do not consider that a pseudonym order is necessary to protect his safety. Nor is it otherwise necessary in the public interest. That is so taking account of the following matters:

    1. (1)

       Many litigants suffer physical or mental health conditions, as do innumerable other members of the community. The fact that the appellant suffers from PTSD and a major depressive disorder does not, in the particular circumstances of this matter, constitute a basis for the making of the order sought. The certificate provided does not establish a significant risk of harm to the appellant from permitting publication. The certificate is a short pro forma statement which was apparently obtained in support of the appellant’s application for “group salary continuance” in December last year. It does not provide any substantive details of the appellant’s health conditions nor does it suggest that there is a significant risk of harm if the appellant is identified.

    2. (2)

       The appellant has been identified in a previous decision of the PIC. That decision itself refers to the appellant suffering from PTSD and depression.

    3. (3)

       Our earlier decision does not address the details of the appellant’s medical conditions in any significant way. The appeal turned on legal issues of statutory construction.

    4. (4)

       Nothing in our decision provides information as to where the appellant or his family live, such as might exacerbate his fears for his own and his family’s safety.

    5. (5)

       The material sent by the appellant also indicates that there has been some online mention of this Court’s decision, albeit of a kind which is commonplace for such decisions. He has not identified any media coverage of the decision, let alone unfair coverage of the kind which has been seen as significant in some cases: eg AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46; (2019) 97 NSWLR 1046 at [101]-[103]; EFA at [230].

    6. (6)

       The application for an NPO was only made after the judgment had been published, despite the fact that the issue was raised by the Court prior to that time. Even if an order of the kind sought was now made, there would be doubts as to its efficacy.

11. [25]

    The application for a non-publication order should be dismissed. The respondent indicated that it did not seek costs in relation to the application.