Smith v New South Wales Crime Commission (No 4)

1. [1]

   These proceedings concern claims for damages for injuries the plaintiffs claim they have suffered as the result of various earlier breaches of the Crime Commission Act 2012 (NSW), the Crime Commission having made directions under that Act, which remain in force. Amongst other things the pleadings raise claims about the safety of those who have come to the attention of the Crime Commission.

2. [2]

   On 13 December 2024 I made interim orders under the Court Suppressions and Non-Publication Orders Act 2010 (NSW), pending hearing of a motion filed by the fourth defendant, a lawyer, who sought pseudonym and other orders. It was supported by affidavits sworn by the fourth defendant and her solicitor, which explained why such orders were being sought.

3. [3]

   The plaintiffs opposed those orders and so the motion was listed for hearing on 18 December 2024. They were ordered to file and serve their evidence and I made the interim orders, being satisfied that they were what justice required in the meantime, given the difficult circumstances which had arisen to be considered. The reasons for those orders being referred to in the orders themselves.

4. [4]

   For the following reasons I have now concluded that the interim orders must be set aside and final orders made, given the evidence and the case which the fourth defendant has advanced about her situation and involvement in these proceedings.

Consent orders proposed

1. [5]

   On 17 December 2024 the plaintiffs’ solicitor informed the Court of their instructions to consent to orders which the defendants had sought. The parties were then directed to confer and provide the final orders they proposed. The orders agreed were:

Why final orders must be made

1. [6]

   The grounds on which suppression order or non-publication orders may be made under the Act are specified in s 8(1) to be:

2. [7]

   What was raised by the motion had to be considered in circumstances where Weinstein J had made pseudonym orders in respect of the plaintiffs, even before the proceedings were commenced, given their difficult circumstances: John Smith (a pseudonym) & Jane Smith (a pseudonym) v State of New South Wales & Ors [2024] NSWSC 507.

3. [8]

   The plaintiffs’ pleaded case includes that they left the country after the breaches of the Crime Commission’s directions because of threats which they received as the result of those breaches. They having been left in fear for their lives and those of their children, as well as for their physical safety and having also suffered various injury, as the result of the breaches of the directions.

4. [9]

   The fourth defendant is the only other individual who is a party to the proceedings. Her affidavit evidence explains the circumstances in which she became a party to the proceedings, in which the plaintiffs claim that she was involved in the breaches of the Crime Commission’s directions on which they rely to establish their case and also why she has sought orders under the Act.

5. [10]

   The fourth defendant defends the claims the plaintiffs pursue against her, but still has ongoing concerns for her safety, she being the only other individual party to these proceedings.

6. [11]

   In her affidavit the fourth defendant explained why her concerns for her own safety have arisen, given not only what the plaintiffs claim, but publicity which the proceedings have already had and the ongoing interest which the proceedings are likely to generate, given their subject matter.

7. [12]

   That the fourth defendant has a legitimate basis for concern about her safety and that of her family is not challenged and must be accepted, given all that the evidence discloses about the nature of the claimed breaches of the Crime Commission’s directions; how it is alleged that she came to be involved; that the plaintiffs have left the country and are overseas in hiding, because of threats which they have received, since the alleged breaches of the Crime Commission’s directions came to light; and the publicity which the claims the subject of these proceedings have already generated.

8. [13]

   In the result I am satisfied that the interim orders must now be set aside, and the parties’ agreed position that further orders need to be made accepted. I will thus make final pseudonym and other orders under the Act which will have the result that earlier judgments which I have delivered in the proceedings about an earlier motion, which was heard in open court, will now be restored to Caselaw.

9. [14]

   Those orders, I am also satisfied, will have limited impact on the open justice rule, which must be properly taken into account in determining the terms of the orders made: AB (a pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46 at [47].

10. [15]

    Further, that the making of those orders is what justice requires, given all that I have explained about the circumstances which arise to be considered. That being necessary to prevent prejudice to the proper administration of justice, to protect the safety of the fourth defendant and it being in the public interest for the orders to be made, that public interest significantly outweighing the public interest in open justice, which will be impacted by the orders, but to a limited extent.

11. [16]

    These conclusions reflecting the terms of the orders and the unchallenged evidence, which provide a proper basis for satisfaction about the existence of a possibility of harm to the fourth defendant, an officer of the Court, from what is pursued against her in these proceedings, which is of such gravity and likelihood that “without the orders sought, the risk of prejudice to the safety of the person would range above the level that can reasonably be regarded as acceptable”: AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6; (2019) 364 ALR 202 at [15].

12. [17]

    Given the possibility of that harm, I am also satisfied that it is necessary for the order to operate throughout Australia and for a very considerable period.

Costs

1. [18]

   The plaintiffs having consented to the orders sought, having had an opportunity to consider what was advanced by the evidence supporting the motion and so properly abandoning their opposition to those orders, it seems to me that the appropriate order is that costs of the motion be costs in the cause.

Orders

1. [19]

   For these reasons I order that:

   1. (1)

      The interim orders made under the Court Suppressions and Non-Publication Orders Act 2010 (NSW) are now set aside.

   2. (2)

      Costs of the motion be costs in the cause.

   3. (3)

      Pursuant to s. 7 of the Act, on the grounds set out in s. 8(1)(a), (c) and (e) of the Act:

   4. (4)

      Order (3) applies throughout the Commonwealth of Australia and operates for a period of 40 years.