TG v MM

HIS HONOUR: Before the Court is an application by the plaintiff for suppression orders under s 7(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), which I will refer to as the Statute. Related orders are also sought.

The application is brought by way of an amended notice of motion filed on 12 March 2024. In support of the application, the plaintiff reads an affidavit of Kim Tomasic affirmed on 27 February 2024.

The application is made in proceedings brought by the plaintiff against the defendant for damages for personal injury alleged to have been caused by a medical procedure alleged to have been performed by the defendant in 2012. It is unnecessary to set out all the circumstances described in the evidence before the Court on the application.

For the purposes of the application, that evidence demonstrates:

On the evidence, I accept that there is a real prospect that the plaintiff will not proceed with the claim if it will result in attention being drawn to the plaintiff.

In support of the application, the plaintiff’s legal representatives have filed an outline of submissions dated 29 May 2024.

The defendant has filed a defence dated 22 April 2024. In the defence, the defendant does not admit liability. The defendant does not oppose the application before the Court.

A suppression order, or a non-disclosure order, necessarily detracts from the principle of open justice, which is one of the most fundamental aspects of the system of justice in Australia. In John Fairfax Publications Pty Limited v District Court of New South Wales (2004) 61 NSWLR 344 at 352-353; [2004] NSWCA 324 at [17]-[22], Spigelman CJ, with whom Handley JA and M W Campbell AJA agreed, said:

A strictly defined exception to the principle of open justice has been established by Parliament in the Statute, which relevantly provides:

As s 6 makes clear, the proposition with which the Court starts and which is the primary consideration under the Statute is the principle of open justice: R v BB (No 6) [2021] NSWSC 1518 at [18] (Rothman J).

It must be accepted that a suppression order in this case will detract from the principle of open justice. However, the orders sought on the application are for the specific purpose of protecting the identity of the plaintiff and the terms of the orders which are sought in the amended notice of motion, or which might otherwise be made, are limited to achieving that specific purpose and do not otherwise interfere with these proceedings being conducted in accordance with the principle of open justice.

The orders will not interfere with the public’s right to scrutinise the conduct of the Court, nor will they interfere with the implementation of justice: R v BB at [18]. The detraction from the principle of open justice which will result from such orders will be minimal.

Under s 7 of the Statute, the power of the Court to make a suppression order is limited to an order made on the grounds permitted by the Statute. The permitted grounds are specified in s 8. The plaintiff relies on two grounds, namely, (a) the order is necessary to prevent prejudice to the proper administration of justice and (c) the order is necessary to protect the safety of any person.

Ground (a) is made out in the circumstances of this case. As set out above, I accept that there is a real prospect that the plaintiff will not proceed with the claim if it will result in attention being drawn to the plaintiff. I do not consider that the plaintiff’s attitude is unreasonable in all the circumstances.

It is not necessary on this application to form a view about the plaintiff’s prospects of success on the claim against the defendant, nor is it possible on the evidence on the application. However, absent agreement by the defendant, the plaintiff is entitled to bring the claim and have it adjudicated by the Court. The practicality of procedures to allow the plaintiff to pursue that entitlement is a part of the administration of justice.

In these circumstances, the orders sought on the application are necessary to prevent prejudice to the proper administration of justice which would occur if the plaintiff was not able to bring these proceedings for fear of drawing attention to herself in the circumstances of this case.

Ground (c) is also made out in this case. In the context of s 8(1)(c) of the Statute, the word “necessary” does not mean “essential”. Rather, the touchstone is reasonableness: R v BB at [20]-[21].

I accept that there is some prospect that attention being drawn to the plaintiff may result in harm to the plaintiff, especially having regard to the past exposure to violence from a number of people and the important mental health issues addressed in the evidence.

The risk of attention being drawn to the plaintiff may be low, although given the media interest and the plaintiff’s occupation, it is not as low as might otherwise be the case.

The risk that any such attention will result in actual harm may also be low but it is not negligible, especially in relation to the plaintiff’s mental health. However, I accept that if harm does eventuate, it may be sufficiently significant to warrant the Court making suppression orders in an endeavour to reduce the risk of attention being drawn to the plaintiff in the first place.

For these reasons, I will make orders under s 7(a) of the Statute, moulded so as to suppress the identity of the plaintiff and not otherwise interfere with the principle of open justice.

I make the following orders, a copy of which I provided to the legal representatives earlier today, a further copy of which I now initial and date and place with the papers: