Harris (pseudonym) v Secretary, Department of Communities & Justice (No 2)

THE COURT: On 29 October 2021, the Court delivered judgment dismissing the proceedings (“the first judgment”). [1] On the evening of 28 October, in response to being notified that judgment was to be delivered by AVL and would subsequently be published on CaseLaw, an email was received from the applicant which included the following:

On the morning of 29 October, an email was received from the applicant’s wife, supporting his request. As a result, when delivering judgment, the following additional order was made:

The ”restriction noted in the judgment” was the following notation under the heading “Publication restriction” on the coversheet:

Submissions were subsequently received from counsel for the applicant, seeking that the published judgment refer to the applicant, as well as the second to fifth respondents (being the applicant’s wife and their children), by pseudonyms, and that those pseudonyms would not simply be the initials of the various parties. In addition:

The first respondent, the Secretary of the Department of Communities & Justice, does not wish to be heard in relation to the redaction/non-publication application and submits to such order as the Court might make.

A further email was received from the applicant on 10 October 2021, which included the following:

This was followed by a further email from the applicant’s wife, supporting the applicant’s request and seeking time to provide further information showing “that there are present dangers if the new judgment is published and the previous judgments are not removed”.

No application was made for any pseudonym, nor for any non-publication order, at the hearing. The matter was heard in open court.

All the first judgment shows in substance is that the applicant’s application for leave to appeal failed. The judgment refers, briefly, to the course of the proceedings in the lower courts, including in the Children’s Court, and then in this Court. It does not refer, at all, to the circumstances of the children, or the underlying issues in the Children’s Court proceedings. It deals with legal issues only. The applicant is named, other than on the cover sheet, once only, in par [3]. Two of the children are mentioned, in passing, using two initials only to do so, and only in the context of certain courses taken by their separate representatives. It does not contain any such “identifying locations, names and information” as is referred to in the applicant’s email.

As has been noted, the judgment bears an annotation drawing attention to the prohibition, contained in Children and Young Persons (Care and Protection) Act 1998 (NSW), s 105, on publication of information tending to identify the children.

In those circumstances, it is not apparent how publication of the first judgment unmodified would expose the children to any risk of harm. It may be seriously doubted that any further order is necessary or appropriate. However, as the children might be identified through identification of their father the applicant, and as it is conceivable that the first judgment could lead to or assist in the identification of related proceedings which might enable identification of the children, it is appropriate that for their protection the applicant be given a pseudonym.

Given the pseudonym to be used, the constellation of initials and children involved is not so striking as to identify the family.

However, the references in the footnotes to the judgments of Sackar J and McCallum JA would frustrate and compromise the purpose of a pseudonym, and enable identification of the children. Accordingly, those footnotes should also be redacted.

Accordingly, in the published version of the first judgment:

It is not for this Court, as presently constituted, to make such orders in respect of the judgments of other judges and other courts. Any application in respect of other judgments should be made, if at all, to the relevant judge by motion.