Gorman v McKnight (No 2)

1. [1]

   THE COURT: On 25 May 2018, Garling J dismissed a summons brought by the executors of the Estate of the late Mr Roy Donald Judd seeking the permanent stay or dismissal of three sets of proceedings which had been commenced separately in the Supreme Court of New South Wales: Estate Judd v McKnight; Gammage v Estate Judd, Channell v Estate Judd; McKnight v Estate Judd (No. 2) [2018] NSWSC 462. The plaintiffs in those proceedings, Messrs McKnight, Channell and Gammage, seek damages from the Estate consequent upon the alleged historic sexual assaults committed against them by the late Mr Judd. The plaintiffs were aged between 13 and 17 years at the time of the alleged assaults.

2. [2]

   This application concerns the contents of an exhibit which was tendered, without objection, by the executors. The exhibit consisted of a transcript of two telephone conversations which were recorded by NSW Police pursuant to a warrant issued under the Surveillance Devices Act 2007 (NSW). At the time the transcript was first marked as an exhibit, Mr Neil QC, who appeared for the Estate, made the following submission:

3. [3]

   In response to that submission, Garling J made an order in the following terms:

4. [4]

   The primary judge nevertheless set out part of the contents of the exhibit in paragraph 40 of Judd (No. 2). On 1 August 2018, the Estate filed a notice of motion in which it sought the following orders:

5. [5]

   On 5 October 2018, Garling J withdrew the first judgment and published a corrected judgment excluding paragraph 40, being Estate Judd v McKnight; Gammage v Estate Judd, Channell v Estate Judd; McKnight v Estate Judd (No.4) [2018] NSWSC 1489.

6. [6]

   The executors of the Estate sought leave to appeal to this Court. The Blue Books filed for the purposes of the application did not contain a copy of the transcript. The index to the Blue Book contained a notation to Exhibit A that the “Appellant does not propose to tender but available on court file”. Mr Newton, who appeared for Mr McKnight, wished to refer to the transcript in his submissions. He emailed a copy to the Registrar of this Court.

7. [7]

   At the appeal hearing on 25 October 2019, there was the following exchange about reliance on the exhibit for the purposes of the appeal:

8. [8]

   The respondents on the appeal explained that their position was that the exhibit had long before entered the public domain:

9. [9]

   The issue was returned to later in the hearing and discussed at length:

10. [10]

    The executors were given seven days to seek a suppression order and set out a very clear statement of the basis on which it was sought:

11. [11]

    No such order was sought by the Estate.

12. [12]

    On 19 February 2020, this Court granted leave to appeal but dismissed the appeal with costs: Gorman v McKnight [2020] NSWCA 20. The judgment of Bell P at paragraph 30 extracted a passage from the telephone conversations which were recorded by NSW Police pursuant to a warrant issued under the Surveillance Devices Act and which had been released by the police in response to a Government Information (Public Access) Act 2009 (NSW) request.

13. [13]

    On 15 January 2021 (almost a year after the decision of this Court was published), the executors filed a notice of motion seeking the following orders:

14. [14]

    This was the first communication from the executors about the subject matter of the Court’s reasons published almost a year prior. The Court made directions for the filing of submissions by the executors in support of the orders sought.

15. [15]

    No sufficient explanation for the egregious delay in seeking relief has been provided, save that it was a matter overlooked by Mr Wrench, the executors’ solicitor. The executors submitted that the delay in bringing the application ought not bear upon the Court’s discretion to provide relief.

16. [16]

    The executors submitted that:

    1. (1)

       the transcript was provided to this Court “on a confidential basis” and ought not to have been published by the Court; and

    2. (2)

       in any event, the publication of the transcript by this Court is prohibited by s 40 of the Surveillance Devices Act.

17. [17]

    The executors submitted that the transcript is subject to an “undischarged suppression order made by Garling J”. It was submitted that the transcript was provided to this Court on the basis that it was “subject to a non-publication order”.

18. [18]

    The information contained in the transcript was “protected information” for the purposes of the Surveillance Devices Act: see s 39(a). Section 40 of that Act prohibits the use, communication or publication of protected information. It relevantly provides:

19. [19]

    There is no express prohibition on giving in evidence in proceedings prohibited information as compared with, for example, s 63 of the Telecommunications (Interception and Access) Act 1979 (Cth). Section 63(1) provides:

20. [20]

    Another example of a prohibition upon admissibility was contained in s 13 of the now-repealed Listening Devices Act 1984 (NSW) which was the predecessor to the Surveillance Devices Act:

21. [21]

    The executors submitted that the exceptions in s 40(3)(a) of the Surveillance Devices Act do not apply in this case because there are “suppression orders” in place. This is incorrect. No “suppression orders” under the Court Suppression and Non-publication Orders Act 2010 (NSW) have ever been made, nor any other orders having that effect.

22. [22]

    The exhibit was tendered by the executors without restriction save that it was described at the time of its tender as “confidential”. No order was ever made by Garling J “supressing” the contents of the exhibit. His Honour’s order that “the contents of Exhibit A are not to be disclosed by any party to any person except for the purposes of the present proceedings, without further order of the Court” did not prevent the respondents referring to and relying upon the exhibit for the purposes of the appeal, much less prohibit this Court from considering the contents of the exhibit or referring to the contents of the exhibit in its judgment.

23. [23]

    The executors appealed to this Court and did not seek to argue that Garling J should have made an order under the Court Suppression and Non-publication Orders Act or should have made a suppression order under any other suggested power. Whatever the merits of the executors’ submission that they wish to preserve the argument that the requirements of s 40(3)(a) of the Surveillance Devices Act have not been met, there was no issue raised for this Court to consider about that topic by the appellant’s notice of appeal.

24. [24]

    Despite that not being a matter raised by the notice of appeal, upon being referred to the exhibit, the Court made it pellucidly clear that it would entertain an application for an order under the Court Suppression and Non-publication Orders Act if made within seven days of 25 October 2019. No such application was ever made. Indeed, as matters presently stand, the executors seek an order that a judgment of the Court be redacted, but do not seek an order under the Court Suppression and Non-publication Orders Act in support of that suggested redaction.

25. [25]

    In the events that transpired, the respondents were permitted to rely upon the exhibit for the purposes of the appeal and the Court was bound to consider the contents of the exhibit and permitted to refer to its contents in its judgment.

26. [26]

    No sufficient reason has been shown for the Court to withdraw paragraph 30 of its judgment published over 12 months ago.

Conclusion and orders

1. [27]

   For the foregoing reasons the Court makes the following orders:

   1. (1)

      The appellants’ notice of motion dated 15 January 2021 is dismissed.