PA v TR

1. [1]

   After the hearing on the afternoon of 6 March 2026, I made the following orders:

2. [2]

   What follows is my reasons for those orders.

3. [3]

   I should say in relation to the extension of the orders against the defendant/first respondent, while Mr Hill of counsel appeared to assist the Court out of courtesy, it is clear that the solicitor who had formerly instructed him is unable to continue to represent the defendant for personal reasons (which I did not fully explore).

4. [4]

   Moreover, the defendant is in custody serving a sentence of full-time imprisonment in respect of the matters the subject of the plaintiff’s claim against him in these proceedings. Mr Hill informed me that there are issues about whether he has actually received a copy of the freezing orders which have been served upon him in accordance with directions previously made and whether he has sufficient fluency in the English language to comprehend them. This latter proposition is contested by the plaintiff. However, in the circumstances, I considered it expedient in the interests of justice to further extend the orders made by Faulkner J for a fixed time to provide an extended opportunity for these matters to be clarified and for the defendant to comply with his obligation to provide an affidavit of assets.

5. [5]

   I will now deal with the contested continuation of the freezing order against the second respondent. Before doing so I record that in Chambers I extended the time referred to in order 1 made against the second respondent (see [1] above) to 5 p.m. on 10 March 2026. The relevant Short Minutes of Order were received in Chambers on that date varying the freezing order so far as it concerns the second respondent in accordance with these reasons and my orders. The varied order was entered on that day.

Procedural background

1. [6]

   The defendant is the plaintiff’s sometime stepfather. By statement of claim filed on 19 December 2025 which followed the defendant's conviction and sentence after a District Court trial, the plaintiff claims damages from the defendant for child sexual abuse occurring over the period from about August 1990 to 1995. By Notice of Motion filed on 22 December 2025 and heard urgently that day on an ex parte basis, Faulkner J made a freezing order against the assets of the defendant and the second respondent to the motion, who is the defendant’s wife. From the second respondent’s affidavit sworn on 13 February 2026, they met overseas in March 2018, became engaged in July 2018 and married in September 2018.

2. [7]

   It is also relevant to record that the second respondent claims that after the defendant was convicted, they separated and it is her intention to obtain a divorce at the earliest possible opportunity. She also swears that she and the defendant entered into a property settlement between them by which he transferred to her the fee simple in the real property of which he was the sole registered proprietor which has been referred to for convenience in the evidence before me as “the St Leonards Property.”

3. [8]

   It is the second respondent’s amplified evidence in her third affidavit sworn on 5 March 2026 that during a visit to the defendant at a correctional centre on 25 September 2025 they entered into an oral agreement to release each other from all claims under the Family Law Act 1975 (Cth), which each may have against the other in consideration of the transfer. It may be notable that they agreed to delay finalisation of any dispute about property jointly held by them overseas until “after [the] divorce is formalised in Australia” (affidavit 5 March 2026 [61] (v)).

4. [9]

   Faulkner J heard the matter again on 24 December 2025 when Mr Hill was given leave to appear as amicus curiae in the interests of the defendant and Mr Ronayne, solicitor, appeared for the second respondent. On that occasion the freezing orders were extended to 16 February 2026 when the matter came before me sitting as the Common Law Duty Judge. After further argument, I extended the orders again until 6 March 2026 and adjourned the matter for further hearing on that date.

Issues

1. [10]

   At the hearing on 6 March 2026, the substantial issue concerned two properties of which the second respondent is the registered proprietor. The first is the St Leonards Property to which I have already referred. The second is a property referred to as “the Green Point Property”.

2. [11]

   I regard it as important to point out that the second respondent was not cross-examined on any of her three affidavits sworn on 15 January 2026, 13 February 2026 and 5 March 2026 respectively. A fourth affidavit of 6 March 2026 was read in support of an application for a suppression or non-publication order under section 7 of the Courts Suppression and Non-publication Orders Act 2010 (NSW) (“the CSNPO Act”), a matter I will deal with at the end of these reasons.

3. [12]

   It is important also to record for the sake of emphasis that the second respondent is not a defendant to the plaintiff’s claim for damages. She did not know either of the plaintiff or the defendant when the plaintiff’s cause of action is said to have accrued. Her only connection with the proceedings is that she is married to the defendant and they own some property jointly overseas. The plaintiff suspects that the defendant may have acquired an interest in the Green Point Property by way of a resulting trust. She also suspects that the transfer of the St Leonards Property, expressed to be for consideration of one dollar, was made solely for the purpose of defeating creditors, specifically the plaintiff herself. While the plaintiff has foreshadowed the possibility of proceedings under section 37A of the Conveyancing Act 1919 (NSW) they are yet to be commenced.

Argument

1. [13]

   The plaintiff accepts that there should be some limitation on the extent to which the second respondent’s assets, which are not inconsiderable, should be restrained under the freezing order. As I have indicated, the plaintiff argues that that the limitation should cover both the Green Point Property and the St Leonards Property. The second respondent argues that the Freezing Order should be dissolved. Through her counsel, Mr A Fernon SC and Mr Hudson of counsel, she proffers an undertaking not to deal with the St Leonards Property without prior notice to the plaintiff.

2. [14]

   In reply, Mr Young of counsel who appears for the plaintiff, argues an undertaking is insufficient given that the affidavit evidence indicates that the second respondent has connections with more than one foreign country and is employed by a subsidiary of a Japanese information and technology group. She seems to spend considerable time in Singapore, where she was when the matter was heard on 6 March 2026.

The Green Point Property

1. [15]

   I will deal with the Green Point Property first. The second respondent amplified evidence about the acquisition of the Green Point Property in her affidavit of 5 March 2026. She is the sole registered proprietor of that property. Contracts for the purchase were exchanged on 18 October 2024, the second respondent paid the 5 per cent deposit from her own funds. The total purchase price was $1.2 million, which the second respondent says was paid for from her own funds and without a mortgage. The settlement date of 21 January 2025 was 6 months prior to the defendant’s conviction on 27 August 2025.

2. [16]

   The plaintiff argues that the evidence at least gives rise to a suspicion that the defendant may have an interest in the Green Point Property by way of a resulting trust or otherwise because, from the detailed account the second respondent gives in her affidavit, it is apparent that of the total purchase price for the Green Point property, $317,800 came from bank accounts controlled by the defendant. The second respondent gives evidence that those funds were a part repayment of various loans she had made to the defendant during their relationship totalling $502,995. The loans to the defendant are fully set out in her affidavit of the 5 March 2026 from [29]-[38].

3. [17]

   While Mr Young argues that the bank statements exhibited (Exhibit ES-1) are incomplete, I am of the view that what the second respondent says is plausible and enjoys a good measure of support from the financial statements in the exhibit. I regard her account as credible on its face, and, as she was not cross-examined, I am not satisfied that there are reasonable grounds to suspect that the defendant has an interest in the Green Point Property on the evidence read before me.

4. [18]

   There is nothing about the circumstances of the acquisition of the Green Point Property including the timing, which of itself would reasonably excite suspicion. It should also be borne in mind that when the transaction settled, the defendant was maintaining his innocence of the serious charges he faced in relation to his then alleged abuse of the plaintiff. There is no other evidence of any alienation of property by the defendant at that time which taken together may provide grounds for the suspicion of divestment to defeat creditors. He remained the sole registered proprietor of the St Leonards Property then and I repeat that transfer to the second respondent did not occur until after conviction and sentence. I refused to extend the orders sought to cover the Green Point Property.

The St Leonards Property

1. [19]

   I have already set out the second respondent’s evidence that the transfer to her of the St Leonards Property was part of an oral settlement of their matrimonial property in Australia. When they met on 20 September 2025, they agreed to separate and divorce and entered into that oral agreement for the partial property settlement. No lawyers were involved and apparently nothing was committed to writing notwithstanding the agreement to transfer real property. There is no evidence before me that the agreement has been approved by the Federal Circuit and Family Court of Australia as appears to be required under the provisions of section 87(2) of the Family Law Act 1975 (Cth); see section 4: definitions of “financial matters” and “maintenance agreement”.

2. [20]

   As the second respondent has not been cross-examined it is not possible for me to make any adverse finding about the account she gives in relation to the formation of the oral financial settlement agreement with the defendant, and I do not do so. However, the circumstances as she relays them, including the timing of the alleged agreement, to my mind have a degree of implausibility about them, which is sufficient to give rise to a suspicion that the defendant has sought to divest himself of what appears to be his only substantial asset within the jurisdiction for the purpose of defeating any claim that the plaintiff may make against him arising out of his conviction on the child sexual abuse charges. To my mind the timing of the agreement between conviction and sentence of itself is strongly suggestive of this.

3. [21]

   In my judgment this suspicion engages with the purpose of rule 25.11 of the Uniform Civil Procedure Rules 2005 (NSW) of preventing the frustration or inhibition of the Court’s process arising from the danger that a judgment of the Court (for which the plaintiff appears to have a strong arguable case) will be wholly or partly unsatisfied unless the order is made. The freezing order is, of course, an interlocutory order which will inure until further order and, if the plaintiff fails to take any proceeding under section 37A of the Conveyancing Act 1919 (NSW) or otherwise set aside the transfer, it will be open to the second respondent to make an application for the dissolution of the freezing order. However, for the reasons I have expressed, I am satisfied that there is a real case to be investigated about whether the second respondent should be required to disgorge the St Leonards Property.

4. [22]

   While a freezing order is not intended to “provide a plaintiff with security in advance for a judgment that [she] hopes to obtain and that [she] fears may not be satisfied (Frigo v Culhaci [1998] NSWCA 88, approved in Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; [1999] HCA 18 at [51]), it remains that the value of the assets covered by the freezing order should not exceed the likely maximum amount of the plaintiff’s claim, as Mr Fernon and Mr Hudson argued: Practice Note SC Gen 14; Firmtech Aluminium Pty Ltd v Xie [2022] NSWSC 1031 at [16]. For this reason, there was renewed argument about the potential value of the plaintiff’s claim. Faulkner J was satisfied by reference to authorities by which he was taken by Mr Young that the potential of the case could be as high as $3.5 million.

5. [23]

   There is no doubt given that the abuse occurred when the plaintiff was of tender years and while I have not received medical evidence, it is notorious that the deleterious psychological effects of child sex abuse inure for the survivor’s lifetime, even if they may diminish to an extent over that period. It seems obvious that such a claim, particularly if one bears in mind the possibility of aggravated and exemplary damages (I note that the defendant has been punished by imprisonment), could result in a very large award of damages.

6. [24]

   However, Mr Fernon has persuaded me that Faulkner J may have been influenced by the plaintiff’s reliance upon Kneale v Footscray Football Club Ltd [2023] VSC 679, where a survivor was awarded $3,250,000 for general damages by a jury of 6. Mr Fernon pointed out that that award, perhaps unsurprisingly, was set aside on appeal and reduced to $800,000; still a large sum.

7. [25]

   The value of the St Leonards Property is said to be $2,150,000. Moreover, it is clear on the evidence that the plaintiff is a successful businesswoman involved in a profitable family business, which circumstance will doubtless raise issues for determination about the extent and value of the diminution in her earning capacity and whether it has resulted in economic loss. As I have said, I have no evidence from which I can make a considered evaluation of these issues, but I am of the view that an award in the order of $2,000,000 is not entirely out of the question.

8. [26]

   I think, however, the more significant factor is what I have said about reasonable grounds for suspicion that the defendant remains the beneficial owner of the St Leonards Property, rather than any attempt to precisely calculate the potential of the plaintiff’s claim.

9. [27]

   As I have said the evidence falls short of giving rise to suspicion about the second respondent’s title to the Green Point Property. Not so the St Leonards Property. The second respondent is a complete stranger to the plaintiff’s action against the defendant and for this reason there is no ground to restrain her right to deal with her property except to the extent it may be tainted by demonstration of suspicion that the defendant has sought to protect himself against a judgment at the suit of the plaintiff, as with the St Leonards Property. As it happens its value on the limited material available to me does not seem to exceed what might be considered the ambit of the plaintiff’s claim.

10. [28]

    Bearing in mind the restraint with which the Court must exercise its powers, it was for these reasons that I made the order against the second respondent on 10 March 2026.

Non-publication order

1. [29]

   As I have said, the second respondent applies for a non-publication order. The plaintiff opposes the order and opposes the current non-publication order in respect of the defendant’s identity. So far as the defendant’s name is concerned, I have deferred final determination of that matter until the questions concerning the defendant’s representation are resolved. Until then it is not possible to afford him a fair hearing in respect of this issue given his incarceration.

2. [30]

   From her affidavits of 13 February 2026 and 6 March 2026, the second respondent says that her association with child sexual abuse proceedings has caused her, inter alia, distress and anxiety, and she fears that if her identity is publicly disclosed, she will be wrongly associated with the defendant’s crimes in which she has had no involvement whatsoever. She is of the view disclosure could damage her career and the phenomenon of guilty by association will be impossible to shake off.

3. [31]

   The application is made in accordance with the provisions of section 7 of the CSNPO Act. As I understand it, Mr Fernon relied upon the grounds in (a) and (e) of section 8(1) of the CSNPO Act.

4. [32]

   In considering whether to make an order, I must take into account that a primary object of the administration of justice is to safeguard the public interest in open justice. This principle is fundamental. Most people dragged into litigation against their will would prefer it if their name was not associated with the case. However, the Court’s power to make an order is limited to cases of necessity to promote the limited grounds set out in CSNPO s 8(1). In this statutory context “necessary” really does mean “necessary”. It is not satisfied by a test of convenience or reasonableness, let alone expediency. I am not of the view that the factors put forward by the second respondent make it necessary to make an order prohibiting the disclosure of information tending to reveal her identity.

5. [33]

   But this is not the end of the matter. The plaintiff, the defendant and the second respondent are all members of an ethnic immigrant group, or diaspora, within our broader community. Each are likely to be known within that ethnic group. As Mr Young pointed out in his submissions, the plaintiff does not consent to the disclosure of her identity which is relevantly protected by the provisions of section 578A of the Crimes Act 1900 (NSW) and also s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). The same subject matter is a legitimate ground for an order under CSNPO: s 8(1)(d).

6. [34]

   While the open justice principle is fundamental and for that reason the Court should be slow to make suppression and non-publications orders, I am of the view that an order for the non-publication of information tending to reveal the identity of the second respondent as a witness in the proceedings is necessary to prevent the disclosure of the plaintiff’s identity for the purpose of avoiding or causing her undue distress or embarrassment under section 8(1)(d). It seemed to me that prima facie, the publication of the defendant’s name, which is likely to be known amongst a broad section of the ethnic community to which I have referred is likely to lead to the identification of the plaintiff even though they do not share the same family name.

7. [35]

   The plaintiff’s family are prominent and, through his association with the plaintiff’s family, the defendant is likely to be comparatively well known in the same community. By extension, it seems to me, the second respondent is caught by the same reasoning. While her family name is different from the defendant’s it is likely to be known that she and he are married and by the same process of deduction, identifying her is likely to identify the plaintiff. For this reason, and for this reason alone, I am prepared to make a non-publication order in addition to the orders I pronounced on 10 March 2026.

8. [36]

   I am satisfied that to achieve the purpose for which I propose to make the order, it is necessary that the order apply throughout the Commonwealth of Australia. I regard it as sufficient that the order inures for a period of 5 years. By then any interest the proceedings are likely generate would have been exhausted and no longer period is reasonably necessary to achieve the purpose for which I propose to make the order.

9. [37]

   Consequently, I make the following orders:

   1. (1)

      Under section 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), for the purpose of protecting the identity of the plaintiff on the ground specified in section 8(1)(d) of the said Act information tending to reveal the identity of the second respondent is not to be disclosed.

   2. (2)

      To give effect to Order 1, the second respondent is to be known for the purpose of these proceedings as PS.

   3. (3)

      Under section 11 of the said Act, this order applies throughout the Commonwealth of Australia.

   4. (4)

      Under section 12 of the said Act order 1 operates for a period of 5 years.

10. [38]

    In relation to the motion seeking freezing orders, I made the following orders in accordance with Short Minutes of Order on 10 March 2026:

    1. (1)

       Until further order, the Second Respondent, [PS], must not, by herself or by any other person, dispose of, deal with, encumber, or dimmish the value of the property having folio identifier [redacted], being the property known as [the St Leonard’s Property].

    2. (2)

       These orders be entered forthwith.

    3. (3)

       Liberty to apply on 48 hours’ notice.

    4. (4)

       The costs of the Plaintiff/Applicant’s Notice of Motion filed 22 December 2025, insofar as they involve [PS], are to be determined in chambers following exchange of submissions pursuant to the following directions: