Nationwide News Pty Ltd v O’Bryan

There is a matter before me today in the duty list which has been brought before me because it has become apparent that the matter is no longer contested. The matter before me is a summons filed by Nationwide News Pty Ltd seeking leave to appeal a decision of Judge Crittenden of the Local Court of New South Wales at Ballina imposing a pseudonym and non-publication order made pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act) on the ground set out in s 8(1)(c) of the Act.

It may be recalled that s 8(1)(c) of the Act provides for an order to be made on the basis that it is necessary to protect the safety of any person. That has been interpreted as including a person’s psychological safety. In any event, Crittenden J made the order on the basis that she accepted that the psychological safety of the first defendant then necessitated the making of the order.

Nationwide News Pty Ltd (the plaintiff) has appealed those orders, but in the meantime, submitting appearances were filed with the Supreme Court of New South Wales from both Ms O’Bryan (the first defendant), who is the person charged with criminal offences involving misconduct in public office (she being a solicitor of this state), and also by the New South Wales Commissioner of Police (the second defendant).

The effect of those submitting appearances is such that there is no longer before the Court any relevant evidence showing any necessity to suppress or not publish the name of the first defendant.

I am satisfied that the submitting appearances have been properly filed.

This is an appeal, technically, under s 14 of the Act. Such an appeal has been interpreted to be a fresh hearing, but clearly, what enlivens this Court's jurisdiction on the appeal is the original decision.

There is before me the evidence that was before Crittenden J which includes an unsworn affidavit of the first defendant. The affidavit includes a letter by a psychologist who, at the time of writing the letter, opined that there was a threat to the first defendant’s mental health. However, as I have noted, the attitude of the first defendant has recently undergone a complete U-turn.

In any event, even if I were of the view that despite the view of the first defendant herself, her safety may need to be protected by way of a non-publication order (noting that s 9 of the Act provides that a court may make an order on its own initiative, as well as on the application by a party or other sufficiently interested person), there is no material before me that shows that such an order is necessary to protect her safety. The test of “necessity” is a very high bar. I am of the view that the submitting appearance clearly shows that she no longer feels the need for a suppression or non-publication order and on the evidence before me the high test of necessity is not reached on her evidence or on any other relevant evidence.

Accordingly, I am satisfied that there is no evidence before me now that would justify the making of a suppression or non-publication order. That is sufficient to dispose of this matter.

It is, however, worth noting that in deciding whether to make a suppression order or non-publication order, the Court must take into account, pursuant to s 6 of the Act, that a primary objective of the administration of justice is to safeguard the public interest in open justice. I note that public interest can be contrasted to “interest by the public” in a more tabloid or salacious sense. In any event, I note that there is a high public interest in open justice where a solicitor has been charged with serious criminal offences. If none of the grounds in s 8 of the Act have been made out, such a matter should be able to be reported on.

To the extent that the plaintiff argued that the original decision was flawed on a number of bases, I am of the view that given the change of attitude by the first defendant, and in light of the fact that this is a fresh hearing, those arguments do not need to be considered further.

In all the circumstances, the Court makes the following orders: