Flecknoe v Pared Pty Ltd

1. [1]

   Proceedings are on foot between Mr Flecknoe and Pared Ltd in which the plaintiff claims damages for sexual abuse which is alleged to have occurred on one occasion in 2008 whilst the plaintiff was a student at Redfield College, Dural, New South Wales, which, at the time, was subject to the care, control, operation and management of the defendant.

The Proceedings

1. [2]

   Proceedings were first commenced on 13 September 2024 naming the Catholic Diocese of Broken Bay as the defendant. On 24 September 2024, the Statement of Claim was amended so as to name the Catholic Diocese of Parramatta as the defendant. Since that time, there has been a further amendment to the Statement of Claim which names Pared Ltd as the defendant.

2. [3]

   In whatever form the Statement of Claim takes, at no time has the plaintiff named or identified a priest whom he alleges is the perpetrator. In the various versions of the Statement of Claim, the perpetrator has been referred to as an unidentified priest who had been appointed by the defendant as a teacher at the school to provide religious instruction to students.

3. [4]

   The plaintiff’s Evidentiary Statement, which is dated 21 March 2025, records that the plaintiff was in Year 3 in 2008. He says that abuse occurred by a priest “whose name I can’t recall” and he then gives a general description of the physical features of that priest by description of the colour of his hair, his eyes, and his approximate height. To the extent that he refers to his role at the school, he says that the perpetrator was “the main priest at the school.”

4. [5]

   The plaintiff’s claim is the subject of a Notice of Motion which is to be heard on Tuesday 8 July 2025, by which Motion the defendant seeks to strike out the Statement of Claim pursuant to r 14.28(1)(a) or (b) of the Uniform Civil Procedure Rules 2005 (NSW). Alternative relief is sought with respect to requiring the plaintiff to identify, in a more detailed way, various of the pleaded concepts. None of the alternative orders seek orders requiring the plaintiff to identify the perpetrator any further than has occurred, but one alternative order does seek to further particularise the duties assigned to the unidentified priest as a teacher.

5. [6]

   It is accepted by the defendant that the Motion to be heard next Tuesday does not, of itself, require the plaintiff to give evidence, nor is it anticipated that the plaintiff will be giving evidence or be the subject of cross-examination.

Notice of Motion

1. [7]

   The Notice of Motion, filed today, brought on urgently in the duty list by the defendant seeks an order in the following terms,

2. [8]

   Because the order is being sought on an ex parte basis, and without notification to any other party, counsel for the defendant seeks that the order remain in force only until 4pm Tuesday 8 July 2025, that being a convenient day when at least the plaintiff will be before the Court and an application can be made by the defendant to seek the order for a longer period.

3. [9]

   Section 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), to which I will refer as the Act, provides that the Court may make a suppression order or non-publication order so as to prohibit or restrict publication, or other disclosure of:

4. [10]

   Prima facie, the person identified in the material, which I will shortly outline, can be regarded as a person associated with the defendant.

5. [11]

   Any order made under s 7(a) can only be made on one or more of the grounds specified in s 8(1) of the Act. The order sought in this case is an order upon the grounds set out in s 8(1)(a) of the Act; namely, that the order is necessary to prevent prejudice to the proper administration of justice. I should note that the terms of s 6 of the Act are relevant.

6. [12]

   Section 6 requires this Court, in deciding whether to make a suppression or non‑publication order, to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. I keep that primary objective in mind.

7. [13]

   In support of the order sought, the solicitor for the defendant, Mr Thompson, annexes to his affidavit a copy of a media release or perhaps described also as a short article published on a website called ‘The Klaxon’ which has the banner headline, "News Without Agenda". The article is dated 2 July 2025 and contains both words and at least two pictures of an individual who is named in the article, and it also contains what appears to be a photograph or electronic copy of a statement issued by the Catholic Archdiocese of Sydney on 1 July 2025 by the Vicar General of that Archdiocese. As well, certain of the words in the article are hyper‑linked to other websites.

8. [14]

   In the article, based upon the statement of the Vicar General of the Archdiocese of Sydney, it records that one of the most senior members of the Catholic Church in the Archdiocese of Sydney "has stood down over allegations of abuse". It records that that individual has "agreed to stand aside" while investigations are underway, and it notes that the individual emphatically denies the allegations.

9. [15]

   The article then reproduces, in effect, parts of the Vicar General's statement. Relevantly, that statement records, "The Archdiocese of Sydney has received notice of a civil claim of historical abuse". It then says that the named senior member "has been identified as the subject of this claim". It then says that the senior member emphatically denies the allegation and that, in accordance with its obligations, the Archdiocese has notified the relevant authorities of the complaint, and that it notes that the New South Wales Police have confirmed there is no active investigation at this time.

10. [16]

    The article in The Klaxon then refers to a connection between the named senior member and the school attended by the plaintiff, but only in the context that the named senior member "has worked pastorally as a school and university chaplain". Five separate places where the senior member has worked are then named. There are two photos in the article: one appears to be a photo of the senior member posed for in association with his current position, rather like a portrait; the second is a photo of that senior member perhaps in preparation for undertaking priestly duties, or immediately after having undertaken priestly duties.

11. [17]

    Counsel for the defendant noted that he was not seeking a take-down order with respect to either the website of the Archdiocese of Sydney, so as to remove the statement of the Vicar General, nor was he seeking a take-down order with respect to the article which was published on the website of The Klaxon.

12. [18]

    Counsel submitted that there was a real risk that, unless the order sought was made over this coming weekend or in the next short period of time, the article in The Klaxon would be picked up and reproduced by the mainstream media or perhaps, put differently, stories would be published in the mainstream media of investigations made by reporters in the mainstream media arising out of, or perhaps based upon, the disclosures contained in the statement of the Archdiocese of Sydney, or other publicly available material, which tended to identify the senior member of the Archdiocese as being a perpetrator of historic sexual abuse.

13. [19]

    It is clear that, in the context of these proceedings, the Archdiocese of Sydney has not been sued as a defendant, and there is no evidence before me that the Archdiocese is specifically aware of this claim. There is no evidence which connects directly, or indirectly, the current proceedings brought by the plaintiff and the statement by the Archdiocese identifying the senior member as the subject of an historical claim for sexual abuse. It may be that a person fully informed of all of the facts and circumstances may infer a connection but, at the moment on the material I have, such inference would only be based on speculation.

14. [20]

    The principal reason why the defendant seeks the non-publication order is because it is concerned that, in circumstances where for a period of nine months or so since the proceedings were commenced by the plaintiff, the plaintiff has been unable to identify the priest who he says abused him; that the plaintiff will now read in the mainstream press the facts and circumstances to which I have made reference and which appear on the two websites that I have described, and then proceed to identify this named senior member of the clergy as the alleged perpetrator. The defendant submits that it will be prejudiced by such identification in the conduct of its case and that, accordingly, the order is necessary to prevent prejudice to the administration of justice.

15. [21]

    I am unpersuaded that that is so, and I am unpersuaded that it is necessary to make a suppression or non-publication order of the kind sought to prevent prejudice to the proper administration of justice.

16. [22]

    My reasons for coming to that conclusion are, shortly expressed, these: first, the statements have been on publicly available websites for some days, and the orders sought do not affect the status of that material on the publicly available websites; secondly, if one assumes that the fears of the defendant are realised and that the plaintiff provides a supplementary statement identifying the otherwise unidentified priest in the Statement of Claim as being the person, the subject of these statements or articles on the websites, the plaintiff's late identification (and only after apparently reading of the matter) will become patent in the hearing of his case. That claim of identification can be tested by cross-examination or in some other way. As well, as I earlier indicated, the timing of this alleged abuse is said to have occurred in 2008.

17. [23]

    Thirdly, the senior member of the clergy is, so far as appears from those articles, alive and well and is in a position to give evidence to either admit, deny, or tell the Court what his recollection is of the circumstances at the time, and the defendant is able to investigate the claim by reference to the specific person and that person is able to give an account of the circumstances. Rather than the defendant being in a more disadvantageous position, it seems to me that if the plaintiff was to provide a further identification, the extent of investigation by the defendant would be significantly reduced. At the moment, the defendant has to answer for a claim against an unidentified perpetrator.

18. [24]

    Once the plaintiff amends his statement, if what occurs is to identify a particular perpetrator, then the defendant is in a much better position to respond to the claim by producing that person to give evidence, if that is seen to be in the interests of the defendant in defending its case. It is no longer facing a case ranging across a number of possible perpetrators, but is facing a case of a single, identified perpetrator who is neither dead nor unwell nor otherwise unable to give a full account of all of the circumstances.

19. [25]

    It follows that I do not accept that the defendant suffers from prejudice of any irremediable, nor any significant kind. It is certainly not a prejudice to the administration of justice. At best, accepting everything which the defendant puts, which I do not, it is a prejudice to the way in which the defendant may go about defending this claim, but for the reasons I have explained, I do not regard that as any prejudice at all.

20. [26]

    Further, even if prejudice is established which is sufficient to constitute prejudice to the administration of justice, in the absence of the defendant seeking take down orders, a suppression or non-publication order does not address the root cause of the prejudice. The information will remain in the public domain even if the order is made. The risk of prejudice occurring remains. An order prohibiting publication is inutile if open sources containing the information remain open and able to be consulted, read or otherwise used by any member of the public.

21. [27]

    Finally, it seems to me that the nature of the specific order sought would ignore the primary objective set out in s 6 of the Act – namely, that the administration of justice is to safeguard the public interest in open justice. The order would have the effect of prohibiting the publication of some information by some organisations or individuals while at the same time allowing the information to remain in the public domain. Open justice is a concept which is not the equivalent of partially open justice.

22. [28]

    In my view, the defendant has not made out grounds for the making of an order, and in those circumstances, I dismiss the Notice of Motion filed in Court today.

23. [29]

    I note the matter will next be before the Court on 8 July 2025.

Order

1. [30]

   I make the following order:

   1. (1)

      Dismiss the Notice of Motion filed 4 July 2025.