[2024] NSWSC 507

John Smith (a pseudonym) & Jane Smith (a pseudonym) v State of New South Wales & Ors

See [10]

Catchwords

CIVIL PROCEDURE – parties – identity of parties – non-publication of a parties' name or identity – where orders are necessary to protect the safety of the plaintiff – plaintiffs permitted to commence and carry on proceedings using a pseudonym

Cases cited

AB (a pseudonym) v CD (a pseudonym)[2019] HCA 16
AB (a pseudonym) v R (No 3)[2019] NSWCCA 46
ABC v Slowiaczek[2021] NSWSC 330

Legislation cited

Court Suppression and Non-Publication Orders Act 2010 (NSW)

Judgment

[1]
By notice of motion, the plaintiffs seek to be heard ex parte. They seek, inter alia, non-publication orders pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (the Act) on the grounds contained in s 8(1)(a) and (c) of that Act with respect to their names and identities and, also, of a corporate identity.
[2]
The plaintiffs propose to commence proceedings claiming damages against four defendants alleging, inter alia, breach of confidence, breach of statutory duty, misfeasance in public office, negligence, and other causes of action based on allegations of improperly disclosed information.
[3]
The basis for this application is outlined in an affidavit of the plaintiffs’ solicitor Zali Burrows affirmed on 30 April 2024. In short, that affidavit discloses that the plaintiffs have significant fears for their safety if they commence and continue the proposed proceedings without pseudonym and other orders. These fears in my opinion are well-founded. There is also a medical report contained in Ms Burrows’ affidavit concerning one of the plaintiffs' mental health history and a diagnosis which is said to arise from the matters alleged in the proposed Statement of Claim.
[4]
The matter is somewhat unusual in that the plaintiffs seek anonymisation orders prior to commencing the proceedings. However, that is not unprecedented: see the judgment of Davies J in ABC v Slowiaczek [2021] NSWSC 330.
[5]
In AB (a pseudonym) v R (No 3) [2019] NSWCCA 46, the Court (Hoeben CJ at CL, Price and Adamson JJ) said at [47]:
[6]
I note that in this particular case, it is s 8(1)(c) that is material. It provides that a Court may make a suppression order or non-publication order if the order is necessary to protect the safety of any person.
[7]
In AB, the Court concluded that the calculus of risk approach which was identified by Nettle J in AB (a pseudonym) v CD (a pseudonym) [2019] HCA 16 was the proper test for a court to determine the basis upon which to make orders necessary to protect the safety of a person. In that case, Nettle J said at [15]:
[8]
I am satisfied on the evidence before me that absent the orders which are sought, the risk of prejudice to the safety of both plaintiffs would range well above the level that could reasonably be regarded as acceptable. Indeed, in my opinion, it would be wholly unacceptable.
[9]
I observe that this application has been made ex parte. I am satisfied that it was appropriate that the application should have been so made. The prospective plaintiffs agree that they will advise the prospective defendants of the identity of the plaintiffs when they are served with the Statement of Claim.
[10]
In all of the circumstances, I make the following orders:
1. (1)
  Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (the Act), and on the ground set out in s 8(1)(c) of the Act:
2. (2)
  At the same time that the applicants serve their Statement of Claim in the proceeding on each defendant, they must also serve on each defendant:
3. (3)
  Pursuant to s 7 of the Act, and on the ground set out in s 8(1)(c) of the Act, the applicants and the Company henceforth be identified by the pseudonyms set out above in order (1):
4. (4)
  Pursuant to s 7 of the Act, and on the ground set out in s 8(1)(c) of the Act, if any party proposes to file any documentary evidence that includes the names of either of the applicants or the Company, then that evidence be filed (to the extent practicable) in a form in which:
5. (5)
  Pursuant to s 7 of the Act, and on the ground set out in s 8(1)(c) of the Act, the Registry remove from the public court file any document that does not conform to orders (3) or (4) (including the applicants’ notice of motion and supporting affidavit of Zali Burrows dated 30 April 2024), and place it in a confidential envelope (to be placed on the court file), disclosure of the contents of which is prohibited throughout Australia, unless:
6. (6)
  Pursuant to s 7 of the Act, and on the ground set out in s 8(1)(c) of the Act, disclosure (by publication or otherwise) of any matter relating to these proceedings be prohibited throughout Australia to the extent only that such disclosure tends to identify the first or second applicant or the Company in connection with the subject-matter of the proceedings, save that this prohibition does not apply in circumstances where:
7. (7)
  Each of orders (1)-(6) above has effect until the Court makes an order revoking or amending it (on the Court’s own motion or on the motion of any person with a proper interest).
8. (8)
  Orders (1)–(6) apply throughout the Commonwealth of Australia.
9. (9)
  The costs of the motion be reserved.
10. (10)
  Liberty to apply on three days’ notice.