ZC v WL

HIS HONOUR: I am dealing with an application for final orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) (‘the Act’). My colleague Weinstein J made interim orders under section 10 of the Act on 5 December 2025 which interim orders dissolve today. The principal proceedings are a claim for child sex abuse brought by a plaintiff who at the time of the alleged abuse was a high school pupil, under the age of 18, attending a Sydney school. The alleged perpetrator of the sexual abuse is said to have been a teacher in the employ of the school.

There are a series of separate or discrete acts of sexual touching relied upon and one incident of sexual intercourse involving oral sex. That last incident to which I have referred is the most serious of the allegations of child sexual abuse made by the plaintiff, always accepting that all types and forms of child sexual abuse are inherently serious.

That incident of sexual intercourse occurred in very particular circumstances which would make the event memorable in the mind of any person who was present on the excursion which provided the occasion for the perpetration of that act. So far as I can determine, on the limited materials available to me today from the affidavits read, a largish cohort of students and teachers from the school were also on that excursion.

From particulars provided in relation to a claim for aggravated damages, it seems likely, if those matters are made good, that the particular incident of child sexual abuse came to the attention of others who were on the excursion, including staff members. Moreover, the plaintiff has made a complaint to the police and from the evidence before me from a senior officer engaged in the investigation, police inquiries are continuing.

No approach by police has been made to the alleged perpetrator and although the investigation seems to be proceeding without any great degree of celerity, police are concerned that disclosure to the perpetrator would prejudice the investigation, particularly when one bears in mind the type of police investigative techniques normally employed to gather evidence in sexual abuse cases of any kind.

Even if a police investigation which is yet to result in charges does not fall within the expression "the proper administration of justice" in section 8(1)(a) of the Act, it would seem to be covered by section 8(1)(e) which makes available a ground that an order under the Act:

There is no doubt that it is definitely in the public interest that the perpetrators of child sexual abuse whenever it occurred should be brought to justice. Matters necessary to facilitate that gaol may be capable of outweighing the public interest in open justice in a particular case.

The class of persons in respect of whom Weinstein J's orders apply include the plaintiff, the alleged perpetrator, the staff members who were also on the excursion and the school. The plaintiff and defendant agree that the orders should be made final and continue for a period in respect of all persons currently covered by an order except the school. The plaintiff says there is no reason under section 8 why the school should not be identified and the school says its identity should be protected by the order continuing in a final form for reasons which I will come to.

The scheme of the Act is fairly clear and has been dealt with many times. it is unnecessary for me to engage in any particular exposition of its legal effect. Suffice it to say that the language of sections 6, 7 and 8 of the Act, the capacity of a news media organisation to intervene as provided for by section 9, and the need to specify the duration of orders in section 12, all bespeak a legislative purpose that the Court should exercise forbearance and restraint in making orders under the Act given section 6 declares a primary objective of the administration of justice is to safeguard the public interest in open justice.

Having regard to that primary objective, the power to make orders is circumscribed by sections 7 and 8. Section 7(a) provides:

Unless the context of the legislation otherwise provided, "person" extends to corporate entities. It is not restricted to individuals. There is nothing in the Act that would suggest to me an exception to that general approach to interpretation.

Section 8 specifies the grounds available to support an order, and each ground turns upon a condition of “necessity”. The Court has to be satisfied that the order is necessary to give effect to the purpose specified in the applicable ground. It is well established that in this context, “necessary” means necessary and it insufficient to demonstrate necessity by some looser test such as convenience or reasonableness.

There are two matters which should be borne in mind. The first is that other statutory provisions make, of their own force, provision for protecting the identity of complainants in sexual assault cases. If criminal proceedings are ever initiated here, they would apply to the plaintiff. They are section 578A of the Crimes Act 1900 (NSW) and having regard to the plaintiff's age at the time these matters occurred, section 15A of the Children (Criminal Proceedings) Act 1987 (NSW).

Although no charges have yet been laid, section 8(1)(d) of the Act picks up the purpose and intent of those provisions. The evidence before me includes a brief medical report from the plaintiff's general practitioner which provides evidence of the consideration that these proceedings are causing him distress and embarrassment which I would consider is undue. It is not suggested that has risen to a level where he is at risk of self-harm. I am satisfied that an order suppressing the identity of the plaintiff is necessary on a combination of the grounds in sections 8(1)(d) and (e) of the Act.

I am also satisfied that an order suppressing the identity of the perpetrator is necessary, on the grounds specified in sections 8(1)(a) and (e). To make things clear, the suppression of the identity of the perpetrator is necessary to prevent prejudice to the proper administration of justice because, on the evidence I have received from the investigating police officer, it does seem likely to a level of probability that criminal charges will be laid (on the assumption the plaintiff is willing) and as the sexual intercourse charge will be a strictly indictable offence which will require trial by jury, naming the perpetrator could prejudice the fundamental right to a fair trial and, therefore, prejudice the proper administration of justice.

Moreover, the police have been careful not to alert the perpetrator to their investigation, and it does seem to me that an order in respect of their identity is necessary in the public interest to avoid prejudice to the police investigation, and that public interest significantly outweighs the public interest in open justice in this civil case. Perhaps as an ancillary matter, the identity of each witness is likewise covered by section 8(1)(e) on the same basis. They are obviously potential witnesses in these proceedings, and they are associated with the plaintiff in as much as they were teachers at the school he attended, and disclosure of their identity is likely to potentially reveal the occasion on which the particular incident occurred, which might help identify the plaintiff and the perpetrator given what I have said about the incident coming to the attention of people on the excursion at the time.

And, certainly, on the evidence of the officer in charge, revealing their identities may also prejudice the investigation in as much as it may alert the alleged perpetrator to the investigation, and, likewise, make the persons named reluctant to come forward to assist police in the preparation of the case against the alleged perpetrator. In my judgment, each of those matters which are the subject of agreement between counsel are properly agreed and covered by the legislation.

I come, then, to the school. I remarked to Mr Sleight of counsel, who appears for the school, it that is an unusual thing to make an order suppressing the identity of such an institution and the plaintiff opposes it in this case. But I think it is also the case, as Mr Sleight points out, that the media have a legitimate interest in reporting events that transpire in Court involving public institutions, including public educational institutions. As I remarked, whether that is always in the public interest may be one thing, but it usually captures the interest of the public in as much as they would wish to know these things.

There is no doubt that the school is a person associated with both the plaintiff, the perpetrator, and each of the witnesses, whose names are going to be protected. Given what I regard as the singular nature of the occasion upon which the alleged serious sexual assault occurred, naming the school in the context of the other surrounding details, may well lead, amongst the large cohort of students and teachers who were present on this excursion, to the identification of the plaintiff and the alleged perpetrator.

To put it another way, there is a sufficient number of persons who were on the excursion, from the photographs I have seen attached to the affidavit of the defendant's solicitor, Ms Macarias, to pose a real risk, perhaps a probability, that word would get out about the matter leading to the identification of the plaintiff and the perpetrator to the prejudice of the proper administration of justice, by way of causing further undue distress or embarrassment to the plaintiff and, perhaps prejudicing the police investigation if the school were identified. Although, as I have reminded myself, forbearance and restraint are required in the exercise of these powers, I am satisfied for the reasons I have sought to express that it is necessary to make an order for the non-publication of the identity of the school, lest disclosure of its identity undermines the other orders that I propose to make.

I therefore make the following orders: