Jane Doe v Fairfax Media Publications Pty Limited & Anor

1. [1]

   HER HONOUR: By Statement of Claim dated 16 September 2016 the plaintiff seeks an order for damages, including aggravated and exemplary damages, for breach of a statutory duty said to be conferred by s 578A of the Crimes Act 1900 (NSW), by the publication of two articles in the Sydney Morning Herald and on the website associated with that newspaper on 17 and 18 June 2016 (respectively, the first and second publication of the articles). The first defendant is the publisher of the newspaper in its paper and digital format. The second defendant is a journalist employed by the first defendant and the author of the articles. At the time of the hearing, the digital version of the article remained available for download although part of the article, as originally published, has been redacted.

2. [2]

   The first and second articles, entitled respectively “Secrets of the Brethren” and “Tony McCorkell Reveals Secrets of the Wealthy Christian Sect Exclusive Brethren”, reference the Royal Commission into Institutional Responses to Child Sexual Abuse (“the Royal Commission”) and, in that context, the sexual abuse of the plaintiff and her sister by Mr Lindsay Jensen, a senior member of the Plymouth Brethren Christian Church (“the Plymouth Brethren”), as examples of the sexual abuse of some children born into the Church and the efforts to conceal the abuse by the Church hierarchy.

3. [3]

   The plaintiff also seeks equitable compensation for what she contends is a breach of confidence owed to her by the defendants by the publication of the articles, and declaratory relief for breach of a suppression (non-publication) order made by Knight DCJ on 13 April 2007 following the trial of Mr Jensen on sexual assault charges in which the plaintiff was the complainant.

4. [4]

   The plaintiff commenced the proceedings by the pseudonym “Jane Doe” (Jane Doe v Fairfax Media Pty Ltd [2016] NSWSC 1294). To preserve her anonymity, the witnesses upon whose evidence she relied will be referred to according to their relationship to her or by their initials, or both.

The proceedings in summary

1. [5]

   The plaintiff submitted that while s 578A of the Crimes Act makes no express provision for a complainant who is identified by the publication of identifying material to bring a civil action for damages, the principles of statutory construction dictate that a right of action should be inferred. The plaintiff placed particular reliance upon the decision of Hampel J in Jane Doe v Australian Broadcasting Commission [2007] VCC 281, which although having no precedential force, was said by the plaintiff to reflect an orthodox application of the principles of statutory construction to s 4(1A) of the Judicial Proceedings Reports Act 1958 (Vic), a provision directed to achieving the same policy outcomes as s 578A of the Crimes Act, although expressed in different terms.

2. [6]

   Section 578A of the Crimes Act provides as follows:

3. [7]

   The defendants submitted that as a matter of statutory construction no private right to sue for breach of the statutory duty in s 578A is conferred. The defendants sought to distinguish the decision of Hampel J on a number of bases, not least that the decision reflected an erroneous approach to the construction question. The defendants submitted that the guidance that is afforded by a line of High Court authority, and the application of settled principles in a range of decisions at first instance and on appeal, including in this Court, will necessitate a finding that no civil right to sue is conferred from the terms of s 578A.

4. [8]

   Fundamental to the success of the plaintiff’s claim for common law damages for breach of the statutory duty in s 578A (assuming a right to sue is to be inferred) is her contention that the articles either identified her as a complainant in prescribed sexual assault proceedings (as defined in s 3 of the Criminal Procedure Act 1986 (NSW)) or was likely to lead to her identification as a person so described. The defendants submitted that even were the Court satisfied that a right to sue is conferred by the terms of s 578A, the plaintiff was neither identified nor likely to have been identified in either of the articles. The defendants further submitted that even if the articles did identify the plaintiff or were likely to do so, she had failed to establish that the publication of the identifying material was intentional and, because the Court would find that mens rea was a constituent element of the civil wrong upon which that claim for damages is based, her claim for damages would fail for that further reason.

5. [9]

   With regard to the plaintiff’s claim for equitable compensation for breach of confidence, the defendants deny the plaintiff was owed a duty of confidence such as would, or might, ground her claim for equitable relief and, further, even were they subject to any applicable duty or obligation of confidence, the publication of the articles did not constitute a breach of any such duty as nothing of a “confidential nature” was published.

6. [10]

   Finally, the second defendant denied breach of the suppression (non-publication) order and submitted that even were breach established, declaratory relief should be refused in the exercise of the Court’s discretion.

7. [11]

   The plaintiff’s claim for common law damages for breach of statutory duty and her claim for equitable compensation for breach of confidence was ultimately advanced referable only to what she described as the hurt, distress, embarrassment, humiliation, shame and guilt she experienced as a result of the publication of the articles. Her claim for damages for psychiatric or psychological injury and economic loss were not pressed.

The evidence

1. [12]

   The plaintiff’s affidavit of 27 March 2017 was read, subject to the defendants’ objection to those paragraphs where she nominates a number of people (not otherwise called as witnesses) who told her they read the articles or one of them, subsequent to which they claim to have identified her as one of the children who had been sexually abused by Mr Jensen. In the course of the hearing I resolved the objection adverse to the plaintiff and her affidavit was amended accordingly. (The reasons for that ruling appear at [47] to [59].)

2. [13]

   Affidavits from the following people were also read (again after amendment to reflect that ruling): the plaintiff’s husband of 27 March 2017; TP (a relative, by marriage, of the plaintiff) dated 12 April 2017; JK (a family friend of the plaintiff) dated 13 April 2017; NK (a family friend of the plaintiff) dated 13 April 2017; AH (a former neighbour and now friend) dated 13 April 2017, and the plaintiff’s general practitioner, Dr Hourigan, dated 13 April 2017.

3. [14]

   The second defendant did not give evidence. He relied upon a number of documentary tenders, inclusive of extracts of a book he wrote entitled “Behind the Exclusive Brethren” first published in 2008 and subsequently in 2009 and 2010, and a number of newspaper articles where the Jensen trial was reported upon, all of which pre-date the articles the subject of these proceedings.

4. [15]

   The print version of the article entitled “Secrets of the Brethren” was published in the Good Weekend magazine on 18 June 2016. The online article entitled “Tony McCorkell reveals secrets of the wealthy Christian Sect Exclusive Brethren”, was published on the Sydney Morning Herald website on 17 June 2017. The content of the articles is identical.

5. [16]

   The articles read as an exposé of the Plymouth Brethren as an insular Christian religious sect currently under the leadership of Mr Bruce Hales, the seventh leader of the Church founded in Plymouth, England, in 1829. As the second defendant described it in the article, the Brethren shun public scrutiny as surely as radios, TVs and voting are trappings of “worldly society”. (“Worldly society” is the nomenclature used by the Brethren to refer to civil society). The article suggests that it is this edict that explains the preparedness of the Church, under the leadership of Mr Hales, to cover up sexual abuse of children by its members, and its determination to avoid public scrutiny of the sexual abuse of children within the Church and to conceal abuse notified to it.

6. [17]

   The article draws heavily on the insights of Tony McCorkell who was born into the Church but who left as a child when his father was exiled. As a young adult Mr McCorkell returned to the Church (as he described it, to the dismay of his parents) and was subsequently engaged as a consultant to help to improve the Church’s reputation and to defend it against accusations that it had ignored or concealed child sexual abuse by its members. Mr McCorkell also detailed occasions when, under orders from the Church hierarchy, he worked with leaders of the Church community to pay the expenses of victims in exchange for their silence. The article includes the following:

7. [18]

   At the time he was interviewed by the second defendant, Mr McCorkell had severed all ties with the Plymouth Brethren.

8. [19]

   The article goes on to refer specifically to “two sisters” who had been abused by Mr Lindsay Jensen and whose abuse the Church hierarchy had attempted to cover up. Mr Jensen was referred to as a church elder known to the Brethren for what was described in the article as his “lustfulness”. The children are not named or described. It was common ground in the proceedings that the plaintiff and her younger sister are the “two sisters” referred to. The sexual abuse the plaintiff and her sister suffered whilst living at the home of the Jensens was not detailed or described in terms. What was made clear was that the home in which they were abused was where they had been sent by the Church after their father was exiled from the Church due to his homosexuality and after their mother was subsequently injured in an accident.

9. [20]

   In the opening paragraph of the article the plaintiff’s initial disclosure of the abuse and her subsequent forced retraction are set out as follows:

10. [21]

    The note was tendered as part of Mr Jensen’s defence in his criminal trial before Knight DCJ in 2005, marked as an exhibit and retained on the Court file before it was accessed by the second defendant. A photograph of the note in the Court file was also included in the articles with the plaintiff’s name and her grandfather’s name redacted. The publication of the photograph of this note is relied upon by the plaintiff in support of her claim for equitable compensation for breach of confidence.

11. [22]

    Further into the article the second defendant refers to another note the plaintiff was forced to write:

12. [23]

    While these handwritten notes were referred to in the article, they were not reproduced. The plaintiff does not complain that the quotation from these handwritten notes constituted a breach of confidence.

13. [24]

    The article goes on to recount the events that followed the plaintiff’s disclosure of the abuse to the authorities (described in the article as “the worldly authorities”) and, after the criminal proceedings were initiated, how Mr McCorkell was enlisted by the Church to minimise the media’s exposure of the Church and to deflect their attention from the proceedings, including by the threat of litigation. Finally, the article recounts the abuse the plaintiff and her sister suffered following their disclosure of the sexual abuse to the authorities and the culmination of the criminal proceedings against Mr Jensen:

14. [25]

    It is the plaintiff’s case that the articles identified her, or were likely to have led to her identification, as one of the two children sexually abused by Mr Jensen because of what were said to be the following particulars of identification in par 10 of the Statement of Claim:

15. [26]

    It was common ground that the information in the articles was derived, in part, from material contained within the District Court file accessed by the second defendant under an order of the Registrar of the District Court on 7 January 2016 (see later at [36] and following). It was the defendant’s case that it is also open to infer that in publishing the articles the second defendant also drew on other sources, including an interview with the children’s father and other research.

16. [27]

    The defendant submitted, correctly, that there was no evidence adduced at trial to support proof of 10A(ii), 10B(iv) or 10C.

17. [28]

    In the plaintiff’s outline of submissions it was submitted that the following “identifying facts about the plaintiff” were published. This was not the case the plaintiff alleged in the pleadings. There was no attempt to amend the pleadings to reflect the case outlined in submissions.

The trial of Mr Jensen and the making of the non-publication order

1. [29]

   The plaintiff’s evidence at the trial before Knight DCJ concerning the manner in which she was assaulted by Mr Jensen (including her evidence of uncharged sexual assaults), and her emotional and physical reaction to the assaults, was the subject of suppression orders made by Knight DCJ on 13 April 2007. His Honour also made non-publication orders in respect of other material which was annexed to an affidavit sworn by Jessica Purches, solicitor, which detailed Mr Jensen’s attack on the plaintiff’s character during the trial. Publication of the fact of the attacks was not the subject of his Honour’s orders.

2. [30]

   The non-publication orders are as follows:

Other publications

1. [31]

   On the front page of the Melbourne Age on 30 December 2006 an article entitled “Brethren bid to hide sex assaults” appears. The second defendant is the author of that article. The same article appeared on 30 December 2006 on the front page of the Sydney Morning Herald.

2. [32]

   On 16 January 2007 Mr Jensen was sentenced by Murrell SC DCJ, after a trial in which the plaintiff’s sister was the complainant, to imprisonment for an effective term of 5 years with a 3 year non-parole period. The sentencing judgment (which I shall assume was read in open court) included the following:

3. [33]

   On 13 April 2007 Mr Jensen was sentenced by Knight DCJ to an effective additional term of 12 months on the sentence imposed by Murrell SC DCJ for the criminal assaults on the plaintiff. No published judgment or transcript of the sentencing proceedings was tendered in the proceedings.

4. [34]

   In the weekend edition of the Sydney Morning Herald of 14-15 April 2007 the following article entitled “More jail time for sex abuser” was published (a day after the suppression order issue by Knight DCJ was lifted permitting publication of the name of Mr Jensen):

5. [35]

   The book entitled “Behind the Exclusive Brethren” was first published in 2008 with two subsequent reprints in 2009 and 2010. Chapter 6 of the book is entitled “Albury”. In the context of describing the troubled nature of the Albury Brethren and the tensions that have been exposed, the second defendant said as follows:

6. [36]

   On 7 January 2016 the second defendant applied to the District Court seeking access to the Court file relating to the trial proceedings of Mr Jensen. The request for access was made on the following basis:

7. [37]

   On 4 February 2016 access was granted by Assistant Registrar West entitling the second defendant to inspect the indictment, exhibits, transcripts of evidence and any record of a conviction or order. No order was made (or sought) for photocopy access. The second defendant was advised of the terms of the order for access by the District Court’s media liaison officer. That email reads as follows:

8. [38]

   The second defendant sent the following email in response:

9. [39]

   The media liaison officer responded:

10. [40]

    In his filed defence in the proceedings, the second defendant admitted that he photographed part of the file using his mobile phone, including one of the handwritten notes in which the plaintiff was forced by Mr Jensen to recant the allegations of sexual abuse. The full text of the handwritten note (in photographic form) was reproduced in both of the published articles. It reads as follows:

11. [41]

    In May or June 2016, Mr O’Brien, the solicitor for the plaintiff, was supplied with a draft of the article proposed to be published. It was not provided to him by the first or second defendant. On 9 June 2016 Mr O’Brien advised the second defendant that the Church regarded the (draft) article as containing information which would lead to the identification of the plaintiff and that, were that to occur, s 578A of the Crimes Act would be contravened. Mr O’Brien also contended that the articles were defamatory of the Plymouth Brethren and Bruce Hales. The draft article was in similar although not identical terms to the published articles; the differences being predominantly stylistic. The articles as published do not appear to have been altered to remove or qualify those parts of the article which Mr O’Brien contended identified or were likely to identify the plaintiff.

12. [42]

    In the plaintiff’s affidavit she refers to being readmitted to St John of God Hospital (SJOG) at Burwood in May 2016 to address a chronic dependency on alcohol. She was admitted to the same hospital in May 2014.

13. [43]

    She was discharged on Saturday 17 June 2016, unaware of the publication of the article in The Good Weekend that day. The plaintiff gave evidence that upon discharge she felt “really confident and [was] looking forward to a fresh start and a shiny new life” and to maintaining her sobriety. She went on to say that she felt confident enough to be able to attend Church events where alcohol was served and to resume her membership of the Church.

14. [44]

    On 18 June 2016 she was informed by her husband of the publication of the article the previous day.

15. [45]

    She gave evidence that upon reading the article online, she felt nauseous. She went on to say:

16. [46]

    The plaintiff’s stated belief that she had been identified as the child (or one of the children) referred to in the article was only relied upon on the issue of damages. She also gave evidence that various people with whom she spoke after the articles were published identified her as one of the children referred to in the articles.

The “identification” objection

1. [47]

   This evidence, and the evidence of various witnesses to similar effect, was relied upon by the plaintiff as relevant to the issue of identification essential to proving both breach of the prohibition against publication in s 578A(2) in support of her common law claim for damages of material identifying a complainant and as one aspect of her claim for equitable compensation. The evidence was also relied upon in the assessment of damages for both causes of action in that it was submitted that what others said caused her to feel humiliated, anxious, extremely inadequate and helpless. There was no objection to the evidence on the issue of damages. The defendants objected to the plaintiff giving evidence of conversations with people who she says identified her as one of the children in the articles as a source of proof that the articles in fact identified her or that they were capable of so doing. The defendants also objected to nominated paragraphs in each of the affidavits of witnesses who deposed to a belief that other people to whom they had spoken or who had spoken to them had identified the plaintiff as the child (or one of the children) referred to in the articles.

2. [48]

   It is unnecessary to extract in full the evidence to which objection was taken. The plaintiff’s evidence and the witnesses whose evidence she relied upon for this purpose were largely consistent in form. For illustrative purposes, in the case of the plaintiff’s affidavit (after amendment as a consequence of unrelated objections) the paragraphs the subject of objection read as follows:

3. [49]

   The plaintiff submitted that this evidence was admissible on two bases. The first was that the identification evidence was relevant for a non-hearsay purpose pursuant to s 60 of the Evidence Act 1995 (NSW). By way of example, in the context of par 41 of the plaintiff’s affidavit (extracted above), the testimonial content of the telephone call was not relied upon for proof of the asserted fact (that the declarant was thinking of the plaintiff in the belief that she was going through hell), but as proof of her/his belief that the articles in fact identified the plaintiff, there being no other rational explanation for the conversation in the terms she deposed to other than that the person she was speaking to, having read the article, had in fact identified her as one of the two children sexually abused. This was said to be illustrated even more clearly by par 63 of the plaintiff’s affidavit (also extracted above) in that the plaintiff does not rely on what was said to prove the asserted facts that the declarant read the article and found it “shocking”, but that on reading the article the declarant identified the plaintiff as its subject.

4. [50]

   In support of the admissibility of this evidence for a non-hearsay purpose (namely to prove the fact that the material in the article led a number of people to identify her as one of the two sisters abused by Mr Jensen) the plaintiff relied upon the observations of Samuels JA in Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643. In that case his Honour held that in an action for defamation, and in circumstances where the plaintiff was not otherwise identified by the terms of the publication, the belief of a witness that a defamatory article referred to the plaintiff is admissible to establish the range or extent of the identification of the plaintiff as the person defamed.

5. [51]

   The plaintiff submitted that although that case concerned an action in defamation, by parity of reasoning the evidence under challenge here is also admissible as original evidence, albeit, in this context, to prove the fact that the material in the article lead a number of people to identify the plaintiff as one of the sisters abused by Mr Jensen, irrespective of whether the Court came to a different view as to whether the article identified the plaintiff or was likely to lead to her being identified.

6. [52]

   In Mirror Newspapers Ltd v Fitzpatrick, Samuels JA said, at 656, the following:

7. [53]

   Continuing at 657, his Honour said:

8. [54]

   The second basis upon which the plaintiff submitted that the evidence was admissible was pursuant to the exception in s 66A of the Evidence Act (that section codifying the “recognised exception” to which Samuels JA referred in the preceding paragraph), in that the plaintiff’s cousin’s belief that the plaintiff was the subject of the article (the fact inherent in what she said as reported in par 41 of the plaintiff’s affidavit) was evidence of her cousin’s state of mind, and that was also a source of admissible evidence to prove that the plaintiff was identified in the articles.

9. [55]

   The defendants submitted that the entirety of the evidence the subject of the identification objection was inadmissible as irrelevant to the issue of identification as it presents for determination in the plaintiff’s action for common law damages for breach of statutory duty or her claim for equitable compensation. The defendants submitted that the question that arises in these proceedings is not the state of knowledge or belief of the various people who the plaintiff claims reported to her that they identified her in the articles, (as would be the case were the action brought in defamation where proof that the words said to be defamatory would reasonably lead persons acquainted with the plaintiff to believe that she was the person referred to is essential to liability for damages (see Samuels JA in Steele v Mirror Newspapers Ltd at 371 B-F)), but whether, as a matter of fact, the articles (in the terms in which they were published) identified or were likely to lead to the identification of the plaintiff such as to constitute a breach of the prohibition on publication with which s 578A is concerned, or which might support a claim for equitable compensation.

10. [56]

    In support of that submission the defendants referred to Bailey v Hinch [1989] VR 78 where Gobbo J, when considering legislation in similar terms to s 578A of the Crimes Act, said at 93, “[i]n my view, the operation of the words in question [being “identify” or “likely to identify”] is a matter of fact in each case”. Thus, the defendants submitted, evidence that a person known to the plaintiff, whether or not they knew something of her experience as a victim of child sexual assault, may have identified her as a subject of the articles does not bear relevantly on whether the Court is persuaded that the articles either identified the plaintiff or were likely to do so (and even less so is it determinative of that fact). While the plaintiff bears the onus of proving that the articles had that capacity if she is to prove the breach of duty under s 578A (or to support her claim for equitable compensation), she does not discharge that onus by adducing hearsay evidence that she was identified.

11. [57]

    Mr Gray SC, senior counsel for the defendants, submitted that while there are similarities between the statutory test to establish breach of the prohibition on publication in s 578A(2), namely does the matter published identify the complainant or is it material that is likely to lead to their identification, and the factors to be taken into account in determining whether a defamatory imputation has identified a particular person in circumstances where the defamatory publication does not name the plaintiff, the two tests are not congruous. The harm caused by a defamatory publication is different from the harm caused by the publication of identifying material in breach of s 578A: the former concerns injury to a plaintiff’s reputation as a consequence of identified or identifiable persons reading a publication in which defamatory statements are made and identifying the plaintiff as the subject of those statements, while the harm which s 578A is presumed to guard against concerns interference with a complainant’s right to privacy, and to achieve a secondary public policy purpose of encouraging victims of sexual abuse to disclose abuse to authorities without fear of public exposure.

12. [58]

    I do not regard the authorities upon which the plaintiff relied as they relate to the tort of defamation as distinguishable simply because harm to reputation that results from an actionable defamation is, or may be, different from the need to prove damage in a common law claim for breach of a statutory duty or breach of confidence. I am of the view, however, that the authorities upon which the plaintiff relied, all of which were decided in the context of an action in defamation and largely limited to the question of damages, have no direct application to the issue of identification that arises in these proceedings. In my view, whether the articles actually identified the plaintiff, or were likely to do so, is a question of fact to be resolved by the Court. That exercise will be undertaken principally by considering the text of the published articles and, where appropriate, the inferences that may legitimately be drawn from the text by the community of readers who know the plaintiff or who might be presumed to know her, including those witnesses who attested to having identified her (evidence as to which no objection was taken). I am satisfied that evidence of those witnesses (including the plaintiff) who say that they were told by others that upon reading the articles they identified the plaintiff is irrelevant to proof of that fact.

13. [59]

    I am also satisfied that the evidence is admissible as evidence of a contemporaneous representation about a person’s state of mind pursuant to s 66A of the Evidence Act, but limited to the assessment of damages. The declarant’s state of mind (namely, a belief that the article identified the plaintiff as the child who was sexually abused by a Church elder) is relevant to damages, it being the plaintiff’s case that the identification of her as one of the children the subject of the article by various members of her community caused her hurt, distress, embarrassment, humiliation, shame and guilt.

14. [60]

    The balance of the affidavit evidence upon which the plaintiff relied may be summarised as follows.

15. [61]

    The plaintiff deposed to having been raised in the Plymouth Brethren community in regional New South Wales. She attended a state school from kindergarten to Year 6, was home-schooled for part of Year 7, and attended various Plymouth Brethren schools in Sydney and regional New South Wales until completion of her Higher School Certificate in 2007. Thereafter she was employed in clerical roles in Australia and the United States within the community of the Church before taking leave from paid employment to care for her two children.

16. [62]

    The plaintiff refers, without elaboration, to the sexual assault she suffered whilst living with Mr Jensen and his wife and the events that ultimately led to her disclosure of that abuse to the authorities, and to the trial and subsequent conviction after trial of Mr Jensen in November 2005.

17. [63]

    The plaintiff describes issues with her mental health which she traces to the time when she was first assaulted. She was medicated from age 12, having been prescribed unspecified medications (save for a reference to Zoloft, an antidepressant) to assist with sleeping, and to manage her depressed mood and anxiety. Her mental health deteriorated during the criminal trial of Mr Jensen (when she was aged 14 to 15). She underwent extensive psychological counselling at that time. At age 15 she engaged in self-harm by cutting her wrists and commenced to abuse alcohol. From her late-teens she developed a chronic dependency on alcohol which increased in severity upon her return to Australia in 2012.

18. [64]

    The plaintiff was first admitted to SJOG for detoxification under psychiatric care in May 2014, at which time she was consuming approximately 20 standard drinks per day. She remained “sober” for about four weeks before she relapsed. As noted at [42] above, she was re-admitted to SJOG in May 2016 for another course of detoxification and upon her discharge in June 2016 felt confident about her prospects of remaining sober and resuming her communion with the Plymouth Brethren community.

19. [65]

    Upon reading the articles she says her “optimism vanished”. She described her psychological state immediately following publication of the articles as follows:

20. [66]

    In the months following publication of the articles, the plaintiff deposed to a recurrence of mental health issues including high levels of anxiety, panic attacks and hyperventilation, frequent crying and emotional lability. She also described a dependence on medication including Valium and Endone (which ultimately led to her third admission to SJOG in October 2016), and her inability at that time to properly care for her daughter.

21. [67]

    In December 2016 the plaintiff and her husband resumed full-time care of their daughter but the plaintiff described difficulties getting up in the morning after resuming full-time care of her daughter. She described feeling shaky and anxious. She recounted two instances of self-harm at this time, including the use of a knife on her wrist and upper thigh. By February 2016 the arrangement whereby the plaintiff’s daughter would spend a few nights a week in the care of her husband’s parents was reinstated.

22. [68]

    In February 2017 the plaintiff was admitted to Brisbane Waters Private Hospital (BWPH) at Woy Woy for treatment of her tendency to self-harm and for assistance in reducing her use of anti-depressant medications. Upon her discharge in March 2017 she described a reduced reliance on prescription drugs but said that she continues “to struggle with everyday life”.

23. [69]

    The plaintiff also deposed to what she described as “The Rumour Mill”, being hurtful things she believed people within the Brethren community have said about her following the publication of the articles and her belief that the articles have given people who knew little of her personal and family history “cause to see [her] in a negative and shameful light making them feel justified for spreading cruel and untrue rumours about [her]”.

24. [70]

    Although the plaintiff’s evidence was not challenged, including her evidence as to the deleterious effect of her belief that people identified her from the articles and held her in low esteem as a result, the defendants submitted that to the extent that her claim for damages (or equitable compensation) is made out, her damages will be nominal in circumstances where there is an insufficient causal link forged between the publication of the articles in June 2016 and her decompensating mental health thereafter, in particular where there is evidence of a range of pre-existing causal factors for her fluctuating mental health, not least the history of sexual assault itself and her chronic dependency on alcohol and prescription drugs for an extended period of years.

25. [71]

    The plaintiff’s husband deposed to knowing that the plaintiff was sexually assaulted by Mr Jensen as a child. He also deposed to observing an increase in her consumption of alcohol in mid-2012, many years prior to the publication of the articles, and that her dependence on alcohol increased from mid-2012 culminating in a referral to SJOG in 2015 and her admission for treatment in a hospital setting that year. The date of her first admission (which the evidence suggests in fact occurred in 2014) has no bearing on the assessment of damages in the absence of evidence that her pre-existing psychiatric illness or psycho-social predisposition to harm as a result of her dependence on alcohol was exacerbated by the publication of the articles, as distinct from that condition being a sequela of a number of chronic and long standing physical and mental health issues. There was no evidence to that effect.

26. [72]

    Consistent with the plaintiff’s evidence, her husband deposed to her alcohol consumption reducing following her first admission to SJOG (either in 2014 or 2015), but steadily increasing, again for reasons unrelated to the publication of the articles, culminating in a further admission in May 2016. He observed that following the plaintiff’s second admission to SJOG she had improved self-confidence and sense of self-worth. He recalled the events of 18 June 2016 when, after he read the articles, he showed them to the plaintiff; and the plaintiff’s subsequent deterioration over the course of the day leading to what he described as her “shut[ting] off from everyone and emotionally detach[ing] from our baby”.

27. [73]

    The balance of the plaintiff’s husband’s affidavit addressed the plaintiff’s inability to devote her attention to their daughter due to her poor mental health, her further admission to SJOG and her admission to BWPH in 2017.

28. [74]

    TP is a relative of the plaintiff by marriage. His wife and the plaintiff’s mother are cousins. He grew up in Wagga Wagga, New South Wales, and is a member of the Plymouth Brethren. When the plaintiff’s family visited Wagga Wagga before the dislocation of the family unit they would often stay with TP’s family.

29. [75]

    As a result of TP’s contact with the plaintiff he knew various details about her, including that she lived in a town in regional New South Wales; that her father left the church after revealing his homosexuality; that the plaintiff and her sister had been assaulted by Mr Jensen, an elder of the Plymouth Brethren, and that Mr Jensen was the subject of two criminal trials in the early 2000s for sexual abuse of the plaintiff and her sister. He claimed no knowledge of the details of the physical and sexual nature of the criminal assaults alleged against Mr Jensen.

30. [76]

    He said that having read the article published on the Sydney Morning Herald website, after having been alerted to them by his brother, he realised “without any hesitation, that the two sisters referred to in the article were the plaintiff and her sister”.

31. [77]

    JK is a family friend of the plaintiff and is married to one of the plaintiff’s cousins. JK’s father, NK (whose affidavit was also read as part of the plaintiff’s case) knew the plaintiff’s mother. JK’s affidavit of 13 April 2017 was read. Additional evidence was adduced in chief and he was cross-examined.

32. [78]

    In his affidavit JK detailed the circumstances in which his father and the plaintiff’s mother grew up together on the Central Coast of New South Wales and of meeting the plaintiff in about 2006 and 2007 in that connection. He said the plaintiff lived with his family for approximately six to nine months in the beginning of 2010.

33. [79]

    He said he knew that the plaintiff had grown up in regional New South Wales; that she was four years older than her younger sister; that she had left the regional town in which they lived to “get away from stuff going on within the Church”; that she “had come from a broken and troubled family”; that her parents had separated; that her father had left the Church because he was homosexual; and that her mother suffered a serious injury in an accident such that her “mental state was not the best”.

34. [80]

    He also knew that Mr Jensen was a senior member in the Church and resided in the same regional town as the plaintiff and that Mr Jensen was “somehow connected” with the plaintiff. He said he was unsure of the nature of the connection although he knew that court proceedings in the early 2000s involved the plaintiff and Mr Jensen and that his father was also involved in some way in those proceedings. He said that because of his father’s connection with the proceedings, his father had taken “an interest” in the plaintiff. He suspected that his father “may have instigated [the plaintiff’s family’s] move to the Central Coast” in 2010.

35. [81]

    He recalled being informed by his father on 15 June 2016 that there would soon be an article published in the Sydney Morning Herald about the Plymouth Brethren and, on 18 June 2018, he purchased a copy of the newspaper. He said that after reading the articles he formed the view that the plaintiff was one of the children referred to.

36. [82]

    He also deposed to having first seen the plaintiff some months after the publication of the article at a dinner at his parent’s home. He recalled that the plaintiff and her daughter were present and that the plaintiff seemed erratic and disconnected, and that she appeared to struggle with managing basic parenting tasks. He also recalled that the plaintiff progressively removed herself from Church functions, and that she was “not the social person she was in early 2016”.

37. [83]

    During examination-in-chief JK gave evidence as to the source of his knowledge of the plaintiff’s father’s sexuality. He said that at approximately age 14, he came to know that the plaintiff’s father was homosexual; information he learnt at school on the Central Coast through “general rumours and conversation with other students” who were from the Plymouth Brethren community. He said that rumours about the sexuality of the plaintiff’s father was something he heard “more than once” and that he had heard it before the plaintiff moved to the Central Coast. He said that it was not the sort of information that he had heard said about other men in the Brethren community.

38. [84]

    During cross-examination JK accepted that prior to publication of the articles he knew the following facts:

39. [85]

    Having established JK’s knowledge of these matters, JK was provided with the sentencing remarks of Murrell SC DCJ following the criminal trial of Mr Jensen where the plaintiff’s sister was the complainant. JK accepted that the sentencing remarks referred to Mr Jensen’s sexual assault of two young girls who lived in regional NSW. He also accepted that the judgment referred to the children’s parents being separated and that Mr Jensen had sexually assaulted both children after their mother had suffered a serious injury in an accident and could not care for her children. He said, however, that he would not necessarily have recognised that the sentencing remarks concerned the plaintiff and her sister. He later accepted (albeit in a qualified way) that his prior knowledge of the plaintiff and the matters referred to in the sentencing judgment might have enabled him to identify the plaintiff as one of the two sisters to whom her Honour referred but that was “not necessarily” the case.

40. [86]

    He maintained the position, however, that he did not know until reading the articles that Mr Jensen was convicted and imprisoned for sexual offences against two girls who were sisters. He denied knowing that the plaintiff and her sister had been sexually assaulted by Mr Jensen.

41. [87]

    Following cross-examination, I posed the following questions to JK:

42. [88]

    AH is a former neighbour and now a family friend of the plaintiff. He is also a member of the Plymouth Brethren. He lived on the Central Coast of New South Wales upon his emigration to Australia from South Africa. He recalled travelling to the regional town in New South Wales in which the plaintiff lived and being introduced to the Brethren community in that area. He recalls meeting the plaintiff at a weeknight Bible reading, in respect of which he said:

43. [89]

    He recalled that the plaintiff’s mother moved to the Central Coast in around 2007 with her children and that the plaintiff lived in a neighbouring house. He said that he and his wife grew close to the plaintiff and became her confidantes. He recalled that the plaintiff confided in him about various matters, including that:

44. [90]

    He recalled becoming aware on 18 June 2016 that an article had been written about the Plymouth Brethren. He recalled accessing the article online and recognising that it was about the plaintiff and her younger sister. He said:

45. [91]

    AH said the information in the article upon which he formed the belief that the article was about the plaintiff included that it referred to two young girls who lived in a regional New South Wales town; that their father was homosexual and had left the plaintiff’s mother and the church; that the plaintiff’s mother misused alcohol; that the two girls were placed into the care of Mr Jensen; that Mr Jensen abused the girls and that he punished the “older girl”, including through the administration of “consequences”.

46. [92]

    Dr Hourigan is the plaintiff’s general practitioner. She has treated the plaintiff since 2010. She says that during the first six months of her treatment of the plaintiff she formed the impression that she was “an intelligent, articulate and resilient young woman”. She noted that following the plaintiff’s discharge from SJOG on 17 June 2016 she was determined to improve her physical and mental health.

47. [93]

    She said that on 18 June 2016, prior to reading the article, she knew various details about the plaintiff, including that:

48. [94]

    Dr Hourigan noted that after reading “the first five or so paragraphs” of the article she knew immediately that it was about the plaintiff given that:

49. [95]

    She said the plaintiff consulted with her on 22 June 2016. In respect of the consultation on that day, she said:

50. [96]

    Dr Hourigan deposed to a conversation with the plaintiff in the following terms:

51. [97]

    Dr Hourigan confirmed that prior to the publication of the articles the plaintiff had been diagnosed with alcohol dependency, depression and post-traumatic stress disorder but assessed her as “coping reasonably well”. She also noted that the plaintiff had been prescribed medication to manage a range of psychiatric conditions, including Valium, Naltrexone, Mirtazapine, Baclofen, Lexapro, Edronax, Nexium and Minipress. She confirmed that the plaintiff has required assistance to help her to care for her daughter. Dr Hourigan also expressed the opinion that after the plaintiff completed the alcohol detoxification program at SJOG in June 2016, “her prospects for recovery were looking good”.

52. [98]

    Clinical records of Dr Hourigan’s consultations with the plaintiff between 22 June 2016 and 2 August 2016 were annexed to Dr Hourigan’s affidavit. In an entry dated 7 July 2016 the following is recorded:

53. [99]

    In an entry dated 13 July 2016 the following is recorded:

54. [100]

    Dr Hourigan’s affidavit comprised the only medical evidence the plaintiff relied upon in support of her damages claim.

The plaintiff’s claim for breach of a statutory duty

1. [101]

   The plaintiff’s case is that by the publication of the articles the defendants breached s 578A of the Crimes Act 1900 (NSW) entitling her to bring a civil action for the recovery of common law damages.

2. [102]

   Section 578A has been set out in full at [6], above. Section 578A(2) is the source of the duty not to publish material identifying or likely to identify a complainant in prescribed sexual assault proceedings, subject to subs (4) which provides for a variety of circumstances in which the duty has no application or, more accurately, where publication of identifying material will not constitute an offence. One of the questions which arises in these proceedings is the extent to which s 578A(4) operates to evince a legislative intention that no civil action for breach of s 578A(2) should be conferred where the legislature has vested the trial judge with authority to override the prohibition on the publication of identifying material. This is said by the defendants to sit incongruously with the construction contended for by the plaintiff, namely an unqualified right in a complainant to sue for breach of the statutory prohibition on publication.

3. [103]

   The plaintiff submitted that the Court would find a legislative intention to confer a private right on a complainant to sue for damages for breach of s 578A(2), consistent with what was said to be the principled approach taken in a number of authorities, including what is said by the plaintiff to be orthodox application of those principles to analogous legislation in Victoria.

4. [104]

   The plaintiff placed primary reliance upon what was said in Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24 at 424 per Brennan CJ, Dawson and Toohey JJ as a source of authority for the identification of the constituent elements of a common law action for breach of a statutory duty. At 424 their Honours said:

5. [105]

   It is the plaintiff’s case that upon a construction of s 578A in the legislative context in which it was enacted, including by the passage of amending legislation in 1987, each of the elements is satisfied. I note that in Jane Doe v Australian Broadcasting Corporation [2007] VCC 281, Hampel J cited the same extract from Byrne as the plaintiff relied upon when considering the question whether s 4(1A) of the Judicial Proceedings Reports Act 1958 (Vic) (which, as with s 578A, also operates to protect the identity of complainants by providing criminal penalties for breach of the prohibition on the publication of matters identifying them) conferred a private right to sue.

6. [106]

   The defendants submitted that the Court will not infer a private right to sue for breach of the statutory duty in s 578A where a criminal sanction has been expressly provided for, together with the procedure by which that offence is to be prosecuted. The defendants also submitted that the operation of s 578A is not exclusively or even primarily for the benefit of a class of persons (being complainants in prescribed sexual assault proceedings) as the legislation has a wider public purpose and benefit. I note neither of the defendants has been criminally prosecuted for what the plaintiff contends is a breach of their duty not to publish identifying material about her as a complainant. There is no evidence before me that the prosecuting authorities, being in this case the New South Wales police, have spoken to either of the defendants or that any complaint has been made to them by the plaintiff or anybody on her behalf.

7. [107]

   In Gardiner v State of Victoria [1999] VSCA 100 at [25] the Court noted:

8. [108]

   The defendants took no issue with s 578A imposing upon them a statutory duty not to publish material which identified or was likely to lead to the identification of the plaintiff as a “complainant” in “prescribed sexual assault proceedings” being, relevantly, the trial of Mr Jensen for the offences of child sexual assault and indecent assault. It is their submission (and the case they pleaded in their filed defence) that they were at all times aware of their statutory obligations and complied strictly with them.

9. [109]

   The defendants also embrace the statement of principle in Byrne and the line of High Court authority which preceded it, but question whether it was applied correctly by Hampel J, if for no other reason than both the plaintiff, in her counsel’s submissions, and her Honour, omitted reference to the passage immediately following the passage extracted at [104] above, where Dixon J’s observation in O’Connor v SP Bray Ltd (1937) 56 CLR 464; [1937] HCA 18 at 477-478 is cited to the effect that the exercise in statutory construction “will rarely yield a necessary implication positively giving a civil remedy”. The defendants submitted that Hampel J did not engage with the construction of s 4(1A) of the Judicial Proceedings Reports Act 1958 (Vic) in any meaningful way and that her finding that a private right to sue is conferred by implication lacks persuasive force for that reason.

10. [110]

    The defendants also submitted that the single judge decisions of this Court in JD Bell (Calool) Pty Ltd v Shortland County Council (1991) 74 LGRA 398, Lubrano v Proprietors of Strata Plan No 4038 (1993) 6 BPR 97 and Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157, relied upon by the plaintiff as supporting the case she advances as the proper construction of s 578A of the Crimes Act, should not be treated as carrying precedential force, with each case readily distinguishable because of the particular statutory context in which it was decided.

The constituent elements of a breach of statutory duty

1. [111]

   To the extent that constituent elements of an action can be extracted from the statement of principle in Byrne, they are as follows:

   1. (1)

      A statutory duty is imposed on the defendant;

   2. (2)

      A legislative intention that the statute imposing the duty confers a private civil cause of action for breach of that duty;

   3. (3)

      The plaintiff is within the class of persons for whose benefit the duty was imposed;

   4. (4)

      Breach of the duty;

   5. (5)

      Damage caused by the breach of the duty of a kind which the duty was designed to prevent.

2. [112]

   It was common ground in the proceedings that the first element is satisfied while the third, fourth and fifth are all matters of fact as to which the parties advanced competing submissions. Those submissions are dealt with below. The construction question encompassed by the second element was the focus of contest between the parties.

The authorities which preceded Byrne

1. [113]

   In Martin v Western District of Australasian Coal and Shale Employees Federation (1934) 34 SR (NSW) 593, at 596, Jordan CJ observed (citations omitted):

2. [114]

   To similar effect, in Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397; [1967] HCA 31 at 405, Kitto J said:

3. [115]

   The plaintiff submitted that one feature that favours the Court inferring a private right to sue for a breach of s 578A(2) is that the duty imposed by the section is specifically directed to the safety of a complainant in prescribed sexual assault proceedings. A legislative intention to provide for the safety of others was said by the plaintiff to be a factor given prominence in a number of authorities where a right of action was conferred, irrespective of whether the legislative provision under consideration also provided a mechanism where breach of the duty was expressly provided for, including by penal sanction. In that connection the Court was referred by the plaintiff to the observations of Dixon J in O’Connor at 478 where his Honour said:

4. [116]

   That extract should not be read as authority for the proposition that the provision by the parliament of a penal sanction is of no relevance to the question of construction (see the discussion later at [139]). Further, not only are the observations of Dixon J extracted from a wider discussion of the circumstances in which a cause of action for breach of a statutory duty will be inferred, the particular circumstances of the case under consideration in O’Connor concerned whether a person injured as a result of the failure to maintain safety gear in a service lift contrary to a regulation in the Scaffolding and Lifts Act 1912 (NSW) could bring an action for breach of the duty enshrined in the regulation. The full extract of Dixon J’s judgment is as follows:

5. [117]

   As is clear from the full extract, the cases where a private right to sue has been conferred because of it being tethered to the safety of those persons who are to benefit from the statutory duty is usually where a correlative common law duty exists, most frequently encountered in legislation operating in an industrial context where the further obligation imposed by statute elaborates upon a pre-existing duty. As the defendants emphasised, this is to be contrasted with the operation of s 578A where a publisher owes no duty of care to a complainant. In Byrne at 424 this was made clear when in the passage following from the extract at [104] above, Brennan CJ, Dawson and Toohey JJ said:

6. [118]

   A "generalisation" of the same kind had earlier been indicated by Dixon J in O'Connor in the extract at [116] above and by Kitto J in Sovar. In O'Connor, Dixon J said, at 478:

7. [119]

   In Sovar, Kitto J noted at 404 that there would generally be "a prima facie inference" that a personal right to sue for damages was intended:

8. [120]

   Kitto J also went on to say at 405 that:

9. [121]

   It is significant to note that in Byrne the High Court found no private right to sue for breach of an award obligation under the then prevailing Industrial Relations Act 1988 (Cth) in circumstances where the public aims of the legislation, and its scope and purpose, were not such as to disclose any intention to benefit or protect employees, or any other class of persons by conferring on them a right of action at common law. The Court also emphasised that the maximum penalty for breach of an award in the relatively modest sum of one thousand dollars was inconsistent with the right to unlimited compensation by way of an award of common law damages which the Court considered was also suggestive of the legislature having intended that no civil right to sue should be conferred.

10. [122]

    The unlimited liability in damages at common law (cf the Civil Liability Act 2002 (NSW)), in contrast to a relatively modest penalty for breach of a statutory duty imposed by the legislature, was also considered a feature of significance in Soutter v P&O Resorts Pty Ltd [1998] QCA 051; [1999] 2 QdR 106. In that case a statutory duty imposed on a licensed seller of alcohol under s 78 of the Liquor Act 1912 (Qld) not to permit drunken or disorderly people to be in or upon such licensed premises was said by an injured plaintiff to give rise to a common law right to sue for damages, it being submitted that the intent of the legislation could have no purpose other than to protect patrons from injury from such people. Pincus JA (with McPherson JA and Fryberg J agreeing) observed that although it might be reasonable to treat the statute as intended to protect respectable patrons of the licenced premises from harm or annoyances, including by people who were intoxicated, the question is not whether the legislature intended to confer protection from injury or damage of that kind but to determine, by the process of statutory construction, whether there was an intention to confer a right of action to sue for damages for such injury. The vagueness in the level to which a person must be intoxicated in order for the licensee to be able to discern and treat a person as a “drunken” person was one feature, amongst others, that the Court held ran counter to the plaintiff’s claim that a right to sue for damages should be inferred.

11. [123]

    The plaintiff submitted that another factor which supports inferring the existence of a private right in a complainant to sue for damages when the complainant’s identity is published, or where material likely to lead to their identification is published contrary to the prohibition in s 578A, is that the statutory duty is intended for the benefit of a particular class of persons, rather than for the benefit of the public at large. It is clear that s 578A(2) operates to protect the privacy and anonymity of a complainant in prescribed sexual assault proceedings, and that the legislature should be taken to have intended to confer that direct and discrete benefit on people so described. The defendant submitted, and in my view persuasively, that there are broader protections the legislature intended to confer by the introduction of s 578A into the Crimes Act in 1987 which is strongly suggestive that the Parliament did not intend that a complainant should be able to sue for breach of the prohibition on the publication of identifying material. By way of example the defendants referred to X v Bedfordshire County Council [1995] 2 AC 633 where the obligations imposed on statutory authorities to protect children from abuse were set out in social welfare legislation, but where no private right of action was held to have been conferred.

12. [124]

    Put simply, it is the defendant's case that there is nothing express or implied in the language of s 578A which evidences a legislative intention to provide a civil remedy in damages to a complainant in the event of a breach of the section, and nothing in the second reading speech in the Legislative Assembly for the bill which introduced s 578A into the Crimes (Personal and Family Violence) Amendment Bill 1987 (NSW) to suggest that a civil remedy was even countenanced. The then Premier of New South Wales, and Minister for State Development and Minister for Ethnic Affairs, Mr Unsworth, in moving that the Bill be read a second time, referred expressly to the prohibition on the publication of identifying information as a means of addressing the invasion of privacy involved in the identification of the victims of sexual assault and its impact in inhibiting reporting of such assaults, and expressly to the consequences of breach where substantial fines may be imposed on individuals and corporations publishing identifying information without the approval of the Court.

13. [125]

    The defendants also submitted that it is clear from the second reading speech that although s 578A does operate for the benefit of a discrete class of persons (being complainants in prescribed sexual assault proceedings), the section was also intended to operate to achieve a wider and enduring public purpose by encouraging children and adults to report sexual offences and to cooperate with the prosecuting authorities in the prosecution of offenders and, in that way, to facilitate the administration of justice. The defendants submitted that s 578A was one provision amongst a raft of amendments to the Crimes Act designed to achieve that policy objective.

14. [126]

    The defendants also submitted that in King v Goussetis (1986) 5 NSWLR 89, McHugh JA (Kirby P and Hope JA agreeing) made it plain that the question whether a statute confers a private right of action will not be answered in the affirmative merely because the enactment is for the benefit of a particular class of persons of which the plaintiff is a member. McHugh JA said, citing authorities I have referred to earlier, at 93:

15. [127]

    It is uncontroversial that no pre-existing common law duty is imposed on a publisher not to publish a report of court proceedings, or to publish only a restricted or circumscribed report where the subject matter is sensitive or even salacious, so long as the publication is full, fair and published in good faith and is not otherwise in breach of specific non-publication orders (as to which declaratory relief may be available) or which may be actionable under the Defamation Act 2005 (NSW). The defendant further submitted that a construction of s 578A which minimises the intrusion upon the principles of open justice should be favoured over a construction which creates a common law action to sue in damages where none has existed previously (Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63).

16. [128]

    The plaintiff accepted that although a right to bring civil action for breach of statutory duty has most frequently been inferred in the context of industrial legislation, a private right to sue should not, as a matter of principle, be limited to the industrial context. In the plaintiff’s submission, one example outside the industrial context is Pask v Owen [1987] 2 Qd R 421 in which the Full Court of the Supreme Court of Queensland held that an action for breach of a statutory duty was available for breach of s 63 of the Firearms and Offensive Weapons Act 1979 (Qld); a section which prohibited the provision of a firearm to a “prevented person” (relevantly a child of 15 years). The defendants were the parents of the 15 year old child who had supplied to the plaintiff a firearm and ammunition which caused serious injury to the plaintiff’s eye and who were aware that their son had done so. In considering whether s 63 of the Firearms and Offensive Weapons Act gave rise to a civil right to sue the parents of the boy, Thomas J said (at 434):

17. [129]

    Andrews CJ, with whom Kelly SPJ agreed, said at 427:

18. [130]

    Andrews CJ regarded as apposite the remarks of Dixon J in O’Connor v SP Bray Ltd extracted above.

19. [131]

    Finally, the plaintiff relied upon the decision of Hampel J in Jane Doe v Australian Broadcasting Corporation [2007] VCC 281, which although having no precedential force, was said to reflect an orthodox application of the principles of statutory construction to an analogous legislative provision in Victoria.

20. [132]

    Section 4(1A) of the Judicial Proceedings Reports Act provides as follows:

21. [133]

    The plaintiff in Jane Doe v Australian Broadcasting Corporation was a victim of a sexual assault in which her then husband was convicted in trial proceedings as the perpetrator. On the day he was sentenced, the Australian Broadcasting Corporation broadcast three news reports. In each bulletin, the offender was identified by name. In one, the plaintiff’s maiden name was broadcast, being the name to which she reverted following the sexual assault. The plaintiff brought proceedings for breach of statutory duty, negligence, breach of confidence and breach of privacy. At the time of the hearing of the civil proceedings, the journalist and the editor responsible for the broadcast had pleaded guilty to breaching the prohibition in s 4(1A) and had provided a written apology to the plaintiff and to the Court which dealt with them for that breach.

22. [134]

    In the civil proceedings brought against them by the plaintiff, they argued that no private right to sue for damages was conferred by s 4(1A). In concluding that the section did confer on the plaintiff a private right to sue for damages, Hampel J reasoned as follows:

23. [135]

    The defendants submitted that to the extent that Jane Doe v Australian Broadcasting Corporation might be accorded persuasive weight in determining whether a private right to sue should be inferred upon a construction of s 578A of the Crimes Act, it should not be followed. While they acknowledge that the extract from Byrne quoted at [73] of her Honour’s judgment is a succinct statement of the essential elements of a cause of action for breach of a statutory duty, her Honour apparently treated that extract as determinative of the question with which she was concerned without considering, expressly at least, the related and critical question of whether the legislature should be taken to have intended to confer a private right to sue for breach of the statutory duty in s 4(1A), by examining that question in the context of a number of propositions which emerge authoritatively from the collected authorities, referred to extensively in argument before me.

24. [136]

    The defendants submitted that her Honour appears to have reasoned as follows: (a) the legislation imposes a statutory duty; (b) the duty operates for the benefit of a particular class of people (including the plaintiff); (c) the duty was breached; and (d) that breach led to the plaintiff’s identification, consequent upon which she suffered harm.

25. [137]

    While the failure to make express reference to the need to consider the issue of a legislative intent to confer a private right to sue in the context of the legislation generally, including the “probability or improbability” or the “convenience or inconvenience” of the legislature intending to impose a civil liability for damages (the informed approach to the question in Martin v Western District of the Australasian Coal and Shale Employees’ Federation Workers’ Industrial Union of Australia (Mining Dept) extracted at [113] above) might not, of itself, have altered the conclusion her Honour reached, in the absence of a detailed consideration of the question of statutory construction, and the competing considerations to which that question gives rise, and having regard to the particular statutory context in which the issue arose under the Victorian legislation where s 4 of the Wrongs Act 1958 (Vic) was implicated (an Act similar in operation to the Civil Liability Act 2002 (NSW)), I do not regard Jane Doe v ABC as carrying the persuasive force for which the plaintiff contends.

Consideration of the authorities

1. [138]

   To the extent that there is a prima facie inference in favour of the conferral of a private right to sue for breach of s 578A because of the protections that observance of the prohibition affords a complainant in proscribed sexual assault proceedings, in my view that presumption is displaced for a number of reasons. The absence of a common law duty of care owed by a publisher to a complainant is one factor which militates against s 578A conferring a right of action in damages for breach. This is contrasted with the existence of a common law duty of care being recognised as a “generalisation” or “presumption” in favour of a statutory duty conferring a private right of action –Byrne at 424; O’Connor at 478; Sovar at 404 – and none exists here.

2. [139]

   In addition, and in my view a most compelling factor operating to displace what the plaintiff contends is the prima facie inference that a private right to sue should be inferred, is the express provision in s 578A of a mechanism for enforcement of breach of the statutory duty, and the protection of a complainant as part of the protections the amending Act was intended to confer, by the provision of a penal sanction for breach of that provision. While in earlier cases to which I have referred an express method of enforcement, even to the extent of providing a penal sanction, did not necessarily derogate from the availability of a private right to sue for damages in certain circumstances (most commonly specific duties imposing on employers the provision of safe working environments notwithstanding the imposition by statute of criminal penalties for breach), as Phillips JA observed in Gardiner at 469, more recent cases paint a different picture. The plaintiff’s reliance on Whittaker v Rozelle Wood Products Ltd (1936) 36 SR (NSW) 204 in the following passage needs to be read in that light. At 207 Jordan CJ said:

3. [140]

   Similarly, in Byrne the existence of enforcement procedures was considered to be of particular significance. At 461 the following was said:

4. [141]

   In addition, and to the extent that Hampel J should be understood at [73] of Jane Doe v ABC (extracted at [134] above) to have relied upon Byrne as authority for the proposition that provision of the criminal sanctions do not displace a private right to sue, neither the passage in Byrne cited above, nor the decision more generally, supports that suggestion.

5. [142]

   The significance of the existence of enforcement procedures was emphasised by Wood CJ at CL in Preston v Star City Pty Ltd [1999] NSWSC 1273. In that case the plaintiff alleged that in breach of s 70 of the Casino Control Act 1922 (NSW), the defendant induced him to take part in gaming in its casino by informing him that he would be treated as a “high roller” and by supplying him with complimentary products, services, and privileges, including free alcohol, and providing a cheque cashing facility for his use. The plaintiff also alleged that the defendant induced him to continue to take part in gaming in its casino when it knew that he had already suffered a substantial gaming loss. In determining that a private right to sue for damages was not conferred, his Honour said at [87]:

6. [143]

   Finally, McDonald (t/as BE McDonald Transport) v Girkaid Pty Ltd [2004] NSWCA 297 is a further source of guidance as to the circumstances in which a private right to sue will be conferred. In that case, a fire broke out on land owned by Girkaid upon which a warehouse partitioned into two areas was located: one area was leased by Inghams Enterprises and the other by Girkaid. Containers of tall oil had been delivered to the appellant’s warehouse for on-delivery. The oil was classified as “dangerous” pursuant to sch 1 of the Dangerous Goods Regulation 1978 (NSW). The respondents alleged that the fire was caused by the spontaneous combustion of the oil which had been mixed with a mineral absorbent, and sued the appellant for breach of statutory duty said to have been created by the Dangerous Goods Regulation. There were three regulations under consideration: r 18(e), 19(e) and 19(g):

7. [144]

   The Court concluded that regulations 18(e) and 19(e) did confer a private right to sue, but that 19(g) did not, because it provided only “the end but not the means” by which the occupier is to provide for the safety of others. In respect of 19(g) McColl JA said:

8. [145]

   In Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209, Le Miere J held (at [80]-[112]) that the Act and Regulations under consideration did not create a private right of action. In reaching that conclusion his Honour referred (among other authorities) to O'Connor, Sovar, Byrne, Gardiner and Girkaid, including (at [106]) the importance identified in Girkaid of a statute prescribing the means by which the duty was to be enforced as well as the end to be achieved if a private right was to be conferred by implication. His Honour expressed the principle of statutory construction to be applied in that context as follows (at [105]):

9. [146]

   The judgments at first instance upon which the plaintiff relied do not require close consideration as each can be distinguished on its facts. Lubrano and Jackson (the latter a case to which Young J referred in Lubrano) were decided in the context of the obligation of a body corporate under the Strata Titles Act 1973 (NSW) to maintain facilities which are enforceable by unit holders as a statutory duty, with the question whether a unit holder can sue for damages for breach of that duty determined in that particular context.

10. [147]

    In JD Bell (Calool) Pty Ltd & Ors v Shortland County Council the plaintiffs alleged breach of a general duty of care owed by the defendant as the local electrical supply authority in support of their claim for damages resulting from a fire caused by an uninsulated high voltage aerial cable on an overhead line coming into contact with a tree growing on the boundary of the plaintiffs’ property. The fire caused substantial damage. In addition to the general duty of care, the plaintiffs alleged a breach of the statutory duty said to be owed by the defendant by reason of reg 38 of the Overhead Line Construction Maintenance Regulations 1962 (NSW) which is in the following terms:

11. [148]

    Cole J considered the applicable legal principles, reaching the concluded view that the purpose of the regulation extended beyond imposing upon the electrical supply authority an obligation to the Crown, sounding only in a penalty. In his view, the terms of the regulation revealed an intention in the legislature that was protective of the safety of persons and their property. He went on to say:

Conclusion

1. [149]

   Applying the principles of statutory construction and guided by the authorities that have considered the question, I am not satisfied that s 578A confers a private right to sue where the statutory duty not to publish identifying material related to a complainant in sexual assault proceedings is breached. In the absence of the existence of a presumption in favour of a particular provision conferring a private right to sue (and, in my view, s 578A does not do so), such a right will only be conferred where the legislature’s intention to confer a right is provided for expressly, or by necessary intendment. There is nothing in s 578A, the Crimes Act generally, or the Crimes (Personal and Family Violence) Amendment Act, which supports such a view. Indeed, the overwhelming impression I am left with is that the only remedy the legislature intended to provide when s 578A is breached is the imposition of a criminal sanction. The fact that a judge might, in the exercise of the discretion in s 578A(4), decide to permit publication of the identity of a complainant where the public interest dictates it, also operates to displace any inference that a private right to sue is conferred. Importantly, and again consistently with the authorities to which I have referred, in circumstances where there is no recognised pre-existing common law duty on the part of a publisher to protect the identity of a complainant, and where the existence of criminal sanctions for breach of s 578A is expressly provided for, there is no necessary or available implication that the Parliament intended that an additional method of securing a complainant's anonymity is to provide, by statute, a private right of action on proof of injury compensable by an award of damages. The blanket prohibition on publication of material that identifies or might lead to the identification of a complainant, without any indication of the means by which such a prohibition may be observed, also lends weight to the conclusion that a legislative intention to confer a private action is lacking.

2. [150]

   It follows that the plaintiff’s claim for damages for breach of statutory duty fails.

3. [151]

   To the extent that error has infected that analysis, and a right to sue for damages is conferred in s 578A, at the urging of the parties I will express my view as to whether the defendants breached their statutory duty.

4. [152]

   The defendants submitted that, on a proper construction of s 578A, mens rea is a necessary element of the criminal offence for breach of the prohibition on publication in s 578A(2). That being the case, they submitted that it follows that to successfully prosecute a breach of the duty as a civil wrong the plaintiff must also establish mens rea, albeit to the civil standard (Waugh v Kippen (1986) 160 CLR 156 at 164-165 Chugg v Pacific Dunlop Limited (1990) 170 CLR 249). The plaintiff submitted to the contrary.

5. [153]

   In Griffin v Marsh (1994) 34 NSWLR 104 at 107-108 Hunt CJ at CL referred to the relevant law stated in He Kaw Teh v The Queen (1985) 157 CLR 523 at 529-530, 567-568 and 594-595, in Von Lieven v Stewart (1990) 21 NSWLR 53 (at 66) and in Hawthorne (Department of Health) v Morcam Pty Ltd (1992) 29 NSWLR 120 at 131 from which he extracted two propositions to be considered in determining whether an offence-creating provision imposes mens rea as a constituent element:

   1. (1)

      The common law presumption is that an essential ingredient of every offence is that the defendant knew of the wrongfulness of his or her act unless the statute excludes that presumption either expressly or by necessary implication.

   2. (2)

      In determining whether the common law presumption has been displaced in the particular case, regard should be had to:

6. [154]

   Griffin v Marsh was concerned with whether s 8D(1) of the Taxation Administration Act 1963 (Cth) which made it an offence for a person (a) to refuse to answer a question asked of them when attending before the Commissioner or another person pursuant to a taxation law or (b) to “refuse to produce a book paper record or other document”, was an offence of strict or absolute liability or one requiring proof of mens rea. While His Honour was of the view that standing alone the offence created by subs (a) appeared to be one of absolute liability (there being no room for the operation of the Proudman v Dayman “defence” (Proudman v Dayman (1941) 67 CLR 536; [1941] HCA 28) where the failure is to refuse to answer a question), when s 8D was read in a wider legislative context, he concluded that the “defence” could be invoked for an offence constituted by subs (b) making it an offence of strict liability. In considering the two propositions extracted from He Kaw Teh, his Honour went on to find that although neither the words of s 8D(1) nor the context in which they appear in the statute give any indication that the legislature intended that mens rea should be excluded, nor anything to indicate that it was intended that the offence should be one that does not require proof of intention by necessary implication, and although the public interest in the Commissioner obtaining access to information and documents under compulsion as part of the existing mechanisms for the collection of tax was a signpost which pointed in the direction of liability being absolute, that alone did not warrant the imposition of absolute liability. He concluded that the offence created by s 8D(1) was one of strict liability.

7. [155]

   That approach to the question of construction was embraced by Studdert J in Waters v Pacific Publications Pty Ltd [1999] NSWSC 366; a decision which is closer to the question that presents here in that both provisions are directed to similar objectives, being the right of certain persons involved in certain types of curial proceedings to anonymity.

8. [156]

   Waters concerned an alleged breach of s 68(1) of the Children (Care and Protection) Act 1987 (NSW) which relevantly prohibited the publication of the name of a child to whom care proceedings under Part 5 of the Act related. Section 120 of the same Act provided a criminal sanction for an offence against s 68(1). After considering the authorities as to whether mens rea is an element of the offence created by s 68 (including He Kaw Teh and Griffin), his Honour concluded that the prosecution needed to establish, as a constituent element of the offence created by s 68(1), a knowledge or an awareness on the part of the publisher that the child who was named in the publication was in fact a child in respect of whom there had been proceedings under Part 5 of the Act. In reasoning to that conclusion his Honour referred to ss 67 and 68 which provided as follows:

9. [157]

   At [29]-[34] his Honour said:

10. [158]

    The defendants submitted that when the same analysis is applied to s 578A there must be an obligation on the party who brings proceedings against a publisher who has actually identified a complainant or published material likely to lead to the identification of that person, to prove that publication was with criminal intent. It is not enough, so it was submitted, simply to establish that material was published where the publisher knew that the person who was the subject of the articles was in fact a complainant in prescribed sexual assault proceedings; it is also essential for the prosecution to establish that the publisher knew or believed that information that was published about that person actually identified them or it was likely to do so. In the defendants’ submission, nothing in s 578A suggests that the common law presumption that mens rea is an essential element of a criminal offence is displaced (cf s 105(5) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) which declares that a prohibition on the publication on the identity of a child is an offence of strict liability). In addition, it was submitted that the concept of matters "identifying" or "likely to lead to identification" of a complainant implies an enquiry into the publisher’s subjective state of mind and a legislative intention that a “guilty mind” is a requisite element for that reason. Finally, it was submitted that the imposition of absolute or strict liability on a publisher would unduly fetter the conscientious reporting of criminal proceedings which, by their nature, are of legitimate public interest and concern.

11. [159]

    The defendants maintained the submission that the overwhelming inference on the evidence in these proceedings is that they neither knew nor believed that the articles would identify the plaintiff as a complainant in the criminal trial of Mr Jensen, or that their publication would likely lead to the identification of her in the sense that the material would “probably” have that effect (as to which see [184] and following]). In support of that inference being drawn in their favour, they emphasised that there was no reference in the articles to the plaintiff by name or by other descriptors, including by the redaction of her name and her grandfather’s name in the photograph of the note, and what they claim was the careful use of generic references to her as one of two children sexually abused both by her gender and the fact that she was a child who lived with her family in a country town. That being so, the defendants submitted that the plaintiff would fail to establish to the civil standard that they intended to publish the identifying material knowing or believing that it would identify her or knowing or believing that it would likely lead to her identification, and that her claim for damages would fail for that reason.

12. [160]

    Though the matter is not entirely free of doubt, there being some room to construe the offence in s 578A(2) as importing an obligation to prove an intentional publication of identifying material where the publisher knew it was material of that kind, I favour the approach taken by Gobbo J in Bailey v Hinch when, in considering s 4 of the Judicial Proceedings Reports Act at 86, his Honour said:

13. [161]

    I also note that in Alan Belford Jones; Harbour Radio Pty Ltd; Nationwide News Pty Ltd v R [2008] NSWDC 8, Finnane QC DCJ was satisfied that s 11 of the Children (Criminal Proceedings) Act 1987 (NSW) which prohibits the publication and broadcasting of the names of children and child witnesses was an offence of strict liability.

14. [162]

    In short, I consider the offence created in s 578A(2) to be one of strict liability. That construction would allow for the operation of an honest and reasonable mistake of fact as a defence to a publisher who publishes material that does not identify the complainant, but which is found by objective analysis to have been likely to lead to his or her identification. That construction would achieve the same policy outcomes as a construction where mens rea is a requisite element of the offence.

15. [163]

    On the issue of identification as it arises in the context of the plaintiff’s claim for breach of statutory duty and breach of confidence, the Court was referred to Gatley on Libel and Slander (12th ed, 2013) where, at [7.1], the following was said:

16. [164]

    To similar effect, in David Syme & Co v Canavan (1918) 25 CLR 234; [1918] HCA 50 at [238], Isaacs J said:

17. [165]

    The parties were agreed “identification” is a question of fact to be determined in the particular circumstances of the case. The parties disagreed as to whether the publication of the articles was such that it was likely to lead to the plaintiff being identified as one of the the child complainants in the Jensen trial.

18. [166]

    The plaintiff referred to Channel Seven Adelaide Pty Ltd v Stockdale-Hall [2005] SASC 307 where Vanstone J was concerned with the prohibition on identification in s 71A(4) of the Evidence Act 1929 (SA). That section provides as follows:

19. [167]

    At [11], her Honour held that breach of that section will occur whenever material is published which described the victim and which is “sufficient, when added to knowledge already possessed by members of the community, to enable identification”.

20. [168]

    The plaintiff also commended to the Court the comments of Gobbo J in Bailey v Hinch [1989] VR 78 at 93-94 where, in considering whether s 4 of the Judicial Proceedings Reports Act, which prohibited the publication of the name, address or school or any other particulars likely to lead to the identification of a person against whom a sexual offence of a “material kind” had been committed (or any picture of the person or purporting to be that person) was breached by publication of the name of the presiding judge:

21. [169]

    R v West Australian Newspapers Ltd, Ex Parte Keating on behalf of the Attorney-General for Western Australia (Full Court of the Supreme Court of Western Australia, 19 June 1997, unreported) concerned the question whether a newspaper had contravened s 35(1) of the Children's Court of Western Australia Act 1988 (WA) by publishing material "likely to lead to the identification of a child" in proceedings in the Children's Court. The authorities to which the Court had regard included Bailey v Hinch. Murray J (with whom Kennedy and White JJ agreed) noted that the legislation was "clearly concerned to strike a balance between two competing principles" – being open justice on the one hand, and the protection of children on the other.

22. [170]

    In the result His Honour found that what was proscribed was the capacity for identification "generally by the public, rather than by private individuals who may, by reason of knowledge otherwise acquired, have a particular capacity to identify a child the subject of a report which a general reader, viewer or listener would not otherwise have” and that "it must be established that there was a real or substantial prospect that the report would lead the general reader, viewer or listener to identify the child". He acknowledged that even such a "general" reader would have "a general substratum of knowledge, relevant to the report and the proceedings" such that "the meaning conveyed by the report and the likelihood that it identifies a child involved in the proceedings with which the report is concerned, is to be judged against the background of that general body of available knowledge." One consequence of that analysis was, in his Honour's view, that "it would not be necessary or indeed relevant to adduce evidence that any particular person who read the report made the identification as a result of the knowledge possessed by that person as a member of the public".

23. [171]

    To similar effect is the statement by Laws LJ in Briffett v Crown Prosecution Service [2001] EWHC Admin 841; [2002] EMLR 12 at [21]:

24. [172]

    In 2005, Keating was considered in another Western Australian case in Western Australia v West Australian Newspapers Ltd and Anor; ex parte James Andrew McGinty MLA, Attorney General for Western Australia (2005) 30 WAR 434; [2005] WASCA 161 (“McGinty”) where the Court (Wheeler, Roberts-Smith JJA and Miller AJA), provided some further elucidation of the concept of the "general" reader at [25]:

25. [173]

    The approach of the Court in McGinty confirms that the relevant reader was not someone who already knew particular details about the person not generally known. A fortiori, the defendants submitted that the relevant reader for present purposes is not someone who already knew that the plaintiff had been sexually assaulted by Mr Jensen, or a reader who knew other information about her and her family which was not generally known.

26. [174]

    Finally, reference was made to Howe v Harvey (2008) 20 VR 638; [2008] VSCA 181 where the Court was considering legislative provisions which prohibit publication of particulars likely to lead to the identification of a child in s 26(1) of the Children and Young Persons Act 1989 (Vic). That section provided:

27. [175]

    At 651-652 after summarising the effect of the judgment in Waters (the substance of which I have referred to at [155]-[156] in the context of the question of mens rea) and after referring to in Keating (although not to McGinty) the Court went on to say:

28. [176]

    It was on the basis of the foregoing authorities that the plaintiff submitted that identification for the purposes of considering whether s 578A was breached (whether by actual identification of the plaintiff or the publication of matters likely to lead to her identification) is not limited to an enquiry into what the reading public at large would interpret or conclude about the identity of the older child referred to in the articles. While that proposition was largely uncontentious, the parties were in dispute as to when identification of the plaintiff by readers other than the reading public at large would constitute a breach of s 578A.

29. [177]

    The defendant submitted that the publication of material which would tend to identify or which is likely to lead to the identification of the plaintiff by someone intimately acquainted with her and who knows of her history as a victim of child sexual abuse would not constitute an identification for the purposes of the section. It was accepted, however, that publication of material which would lead to identification (or was likely to do so) of her by a friend or neighbour when that person did not have that information may be sufficient to constitute a breach of s 578A (see Howe v Harvey). The plaintiff submitted that material which identified her by a substantial number of readers within the community of Plymouth Brethren, or which was likely to lead to her identification by members of that community (as the plaintiff contended occurred here), was sufficient to constitute a breach of s 578A.

30. [178]

    R v W (1998) 1 NZLR 35 was cited in support of that submission. That case concerned a prohibition on the publication of particulars likely to lead to the identification of a victim or complainant in sexual assault proceedings. The Court said, at [40]:

31. [179]

    The plaintiff also referred to XX v Nationwide News Pty Ltd [2010] NSWDC 147. The provision under consideration in that case was s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) which prohibits publication “of any information, picture of other material … that identifies the child or young person, or … that is likely to lead to the identification of the child or young person”. Commencing at [19], Gibson DCJ considered the collected authorities in this State and elsewhere on the question of identification and concluded that the “’general reader’ test” applied in Keating was not to be followed. I have already noted that the correctness of the approach in Keating had earlier been doubted in Howe v Harvey (an authority upon which the defendants relied).

32. [180]

    The Western Australia Court of Appeal has since tempered the approach in Keating. In McGinty – a decision which has not, so far as I am aware, been doubted – the Court said (at [25]):

33. [181]

    In light of the authorities, it seems to me that there are three potential or hypothetical readers of the published articles in this case:

    1. (1)

       a general reader, being a person armed with the general substratum of knowledge about the Jensen trial and the context in which the sexual assaults of the two sisters occurred, being information available to any member of the public, who have no particular knowledge of the plaintiff or her family circumstances;

    2. (2)

       a general reader as in (1) above, but who, unlike that reader, possesses actual knowledge about the plaintiff but someone who is not closely or intimately connected with her. That additional knowledge may be derived from the reader actually living or having lived in Albury at the time of the assault or at the time of the criminal trial, or who attended the same school as the plaintiff (whether the general reader is a student, teacher or parent of a student) or a person who shares the same faith as the plaintiff in the community of the Plymouth Brethren

    3. (3)

       a person who is closely and intimately connected with the complainant, and who possesses information about the complainant not generally known.

34. [182]

    I am satisfied that the prohibition on identification of the plaintiff for the purposes of s 578A applies to persons who comprise category (2); that is readers who have actual knowledge of the plaintiff but are not intimately connected or acquainted with her, including readers who may have lived in Albury at the time of the sexual assaults and learned of the trial from newspaper reports but who did not know of her identity as a complainant. Those persons would also include members of the Plymouth Brethren at the time of the accusations made against Mr Jensen and during his subsequent criminal trial and conviction.

35. [183]

    Having considered the self-evident policy objectives inherent in the operation of s 578A and its intended scope, I am satisfied that prohibiting publication of material actually identifying, or likely to identify a complainant in prescribed sexual assault proceedings to persons falling within category 2, strikes an appropriate balance between recognition of a complainant’s right to privacy and protection, coupled with the expectation that affording that protection will encourage victims of sexual abuse to disclose that abuse to the authorities on the one hand, and the overriding public interest in the principles of open justice and the important role media interests play in publishing matters of legitimate public interest and concern on the other, including, where appropriate, sexual abuse of children within and outside institutional environments.

36. [184]

    It has long been recognised that the word “likely” has different meanings in different statutory contexts. In Attorney-General for the State of New South Wales v Winters [2007] NSWSC 1071, after considering the collected authorities in detail in [33]-[47], McClellan CJ at CL said at [50] as follows:

37. [185]

    The plaintiff submitted, reliant upon the approach of Mason, Wilson and Deane JJ in Boughey v R (1986) 161 CLR 10; [1986] HCA 29 at [21], that in the context of s 578A(2), the publication of material “likely” to lead to the identification of a complainant should be understood to mean “a substantial being a ‘real and not remote’ chance” of that occurring. The defendants submitted that “likely” should be taken to mean “probable”, with the question being whether the published material would “more probabl[y] than not” lead to the plaintiff being identified as a complainant in prescribed sexual assault proceedings.

38. [186]

    The Macquarie Dictionary defines “likely” in a way that is more aligned with the meaning proposed by the defendants:

39. [187]

    In Boughey, in proposing that the appropriate meaning of likely in s 157(1) of the Criminal Code Act 1924 (Tas) was “a substantial - a ‘real and not remote’ - chance” (that an act will cause death or bodily injury), the Court provided the following rationale:

40. [188]

    Earlier, In Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331, Deane J said, at 346:

41. [189]

    In Keating, the Court considered the meaning of likely in the context of s 35(1) of the Children’s Court of Western Australia Act 1988 (WA) which provided that “a person shall not publish … any particulars or other matter likely to lead to the identification of a child”. Murray J, with whom Kennedy and White JJ agreed, said in respect of the definition of “likely”:

42. [190]

    In taking that approach, Murray J expressly endorsed the meaning ascribed to “likely” in Boughey at [21], finding “those words are apposite in this case.”

43. [191]

    In Australian Securities Commission v Nomura International PLC (1998) 89 FCR 301, the two discrete definitions to which Deane J in Tillmans had said “likely” may give rise were considered by Sackville J. There, the plaintiff submitted that “likely” in the provision under consideration (s 998 of the now repealed Corporations Act 1989 (Cth)) referred to there being a real or not remote chance, while the defendant submitted that a greater than 50 per cent chance was required. Sackville J ultimately found that in the section under consideration, “likely” meant “more probable than not” - an analysis that I consider has application in this case. At 395-396 he said:

44. [192]

    In TSL v Secretary to the Department of Justice (2006) 14 VR 109; [2006] VSCA 199, the Victorian Court of Appeal considered the meaning to be ascribed to “likely” in the context of s 11 of the Serious Sex Offenders Monitoring Act 2005 (Vic). The Court found:

45. [193]

    In Attorney General (NSW) v Winters [2007] NSWSC 1071, McClellan CJ at CL considered the meaning of “likely” in the context of ss 9 and 17 of the Crimes (Serious Sex Offenders) Act 2006 (NSW). His Honour found that:

46. [194]

    In Tillman v Attorney General (NSW) (2007) 70 NSWLR 448; [2007] NSWCA 327 at [88], Giles and Ipp JJA stated that “there is much to be said for the view expressed by McClellan CJ at CL in Attorney General (NSW) v Winters, (as extracted in the paragraph above). Notwithstanding, their Honours felt constrained by the view expressed in TSL, finding, at [88]:

47. [195]

    The Victorian Court of Appeal had cause to consider the meaning to be ascribed to “likely” in RJE v Secretary to the Department of Justice (2008) 21 VR 526; [2008] VSCA 265, also in the context of s 11 of the Serious Sex Offenders Monitoring Act 2005 (Vic); the same provision under consideration in TSL. The Court declined to follow TSL, finding, at [533]:

48. [196]

    The Court also declined to follow the decision of the New South Wales Court of Appeal in Tillman, stating:

49. [197]

    The Court also said, in a passage that favours the meaning the defendants seek to ascribe to “likely” in the present case, that, on “ordinary principles of construction”, a court “should favour that interpretation which produces the least infringement of common law rights”.

50. [198]

    The plaintiff sought to rely on the decision of the New Zealand Court of Appeal in the matter of R v W (1998) 1 NZLR 35. In that case the Court was concerned with the meaning to be ascribed to “likely” in a provision prohibiting, in similar terms to s 578A(2), the publication of “the name, address, or occupation of the person accused or convicted of the offence … or any particulars likely to lead to any such person's identification.” Richardson P, with whom Henry and Keith JJ agreed, found that “likely” requires only that there be “the existence of an appreciable risk” of identification. His Honour stated:

51. [199]

    The plaintiff also referred the Court to O’Riordan v The Director of Public Prosecutions [2005] EWHC 1240, not as support for the meaning of “likely”, but for a line of authority culminating in a short extract from the judgment of Dame Butler-Sloss P in Attorney General v Greater Manchester Newspapers (Unreported, England & Wales High Court, Queen’s Bench Division, Dame Butler-Sloss P, 4 December 2001). In that case an application was made by the Attorney-General to commit Greater Manchester Newspaper Ltd for contempt on the ground that an injunction, earlier granted by Dame Butler-Sloss P, had been breached when the respondent newspaper caused to be published information that, in the Attorney-General’s view, was likely to lead to the identification of two people (“the boys”) due to be released from detention. The injunction restrained publication of:

52. [200]

    It was in this context that her Honour proceeded to consider the meaning to ascribe to “likely”:

53. [201]

    While Attorney General v Greater Manchester Newspapers is of limited precedential value (as is the New Zealand case of R v W considered in [178] and [198]), I am satisfied that the context in which her Honour came to determine the meaning of “likely” is sufficiently distinct from the need to consider “likely” in the context of s 578 of the Crimes Act for the decision to be of limited persuasive force.

54. [202]

    Having considered the authorities, including the development of the Australian authorities in recent times, and the context in which “likely” appears in s 578A(2), I am persuaded that the meaning the defendants contend for should be adopted; that is, I am satisfied that the publication of material “likely” to lead to the identification of a complainant means that the material would probably have that effect, in the sense of it being “more probable than not” that a complainant was identified. The line of reasoning ultimately adopted by the Victorian Court of Appeal in RJE, and that of McClellan CJ at CL in Winters, has encouraged me to that view.

55. [203]

    The decision in Tillman should not be followed as their Honours expressed a preference for the reasoning adopted by McClellan CJ at CL in Winters, but were constrained at that time by the Victorian Court of Appeal’s judgment in TSL; a decision the Victorian Court of Appeal has since declined to follow.

56. [204]

    What remains to be considered is whether I am satisfied that there was a breach of s 578A by the defendants’ publication of material in the articles that:

57. [205]

    I am not satisfied that the first limb of the prohibition on publication was breached. That is, I am not satisfied that the articles identified the plaintiff. The Macquarie Dictionary defines “identify” as:

58. [206]

    In my view, the first limb of the prohibition was intended to protect against the naming of a complainant or, possibly, the inclusion of a photograph of a complainant, including less overt means of identification (perhaps by reference to the relationship between a complainant and a named offender (as was the case in Jane Doe v ABC). I do not regard the naming of Mr Jensen as the offender as having that capacity. This is to be contrasted with identification of a complainant by a reader who, by their possession of information about a complainant, has reasoned or concluded that he or she was the subjection of the publication. In my view, any broader interpretation of what is comprehended by the first limb would trespass on the second limb which prohibits the publication of material “likely to lead to the identification of” a complainant.

59. [207]

    Having regard to the findings I have made, I am satisfied the defendants would be in breach of s 578A if the articles contained material which was likely (in the sense of more probable than not) to lead to the identification of the plaintiff by persons who had actual knowledge of her and her family circumstances without being closely or intimately connected with her. On that analysis, I am satisfied that identifying material was contained within the articles for the following reasons:

    1. (1)

       The articles disclosed that the complainants were sisters (the plaintiff had two sisters).

    2. (2)

       The articles disclosed that Mr Jensen was convicting of sexually assaulting both sisters, and that the offending conduct occurred while they resided in a regional town of NSW (the plaintiff lived in Albury at Mr Jensen’s home with her sister after her family unit dissolved).

    3. (3)

       The articles disclosed the fact of the plaintiff’s father’s homosexuality and the circumstances in which he left the family home. I accept that the sexuality of the plaintiff’s father was a topic of commentary by the adult members of the Brethren community and that this infiltrated the membership of the Church more generally as children of Brethren families came to learn of the circumstances in which the plaintiff came to move to the Gosford area. In his examination-in-chief, JK deposed to having learnt of the plaintiff’s father’s sexuality in 2007 at age 14. He recalls having heard “more than once” rumours and conversation about the sexuality of the plaintiff’s father. He said the fact of the plaintiff’s father’s homosexuality was not “the sort of fact” he had previously heard said about other men in the Brethren community. JK accepted that rumours about the plaintiff’s father’s homosexuality were “commonplace” in the Brethren community and that his sexuality was discussed by reference to the fact that he was the father of the plaintiff (who was either attending JK’s school at the time, or was soon to be attending. In either case, the plaintiff’s sister was attending the school at the time).

    4. (4)

       The articles disclosed the fact that the mother of the children suffered an “injury”.

    5. (5)

       The articles disclosed that the sisters were placed under Mr Jensen’s care because her father had left the Brethren community and her mother was unable to care for the plaintiff and her sister by reason of that injury.

60. [208]

    By reason of the matters identified in the preceding paragraph, and substantially in reliance on the evidence of JK, I am satisfied that a member of the Brethren community who possessed actual knowledge about the plaintiff and her family circumstances but who was not so closely or intimately connected with her so as to have learnt of the fact that she was sexually abused as a child (the position of JK, in contrast to the position of the plaintiff’s husband and other witnesses, and her treating doctor), was likely (in the sense of more probable than not) to have identified her as one of the children referred in the article.

61. [209]

    Despite the articles having been likely to have identified the plaintiff, albeit to what must be a small cohort of readers, since I am not persuaded that s 578A confers a private right to sue for breach of the prohibition on publication, the plaintiff’s claim for common law damages fails.

Breach of confidence

1. [210]

   In addition to the plaintiff’s claim for damages for what she alleged was the defendants’ breach of the statutory duty in s 578A not to identify her as one of the complainants in the trial of Mr Jensen, is the claim that the defendants also breached an equitable duty of confidence owed to her and that she is entitled to be compensated for that breach.

2. [211]

   In Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21; 265 ALR 28 the Full Court of the Federal Court identified four elements as foundational to establishing an actionable breach of confidence:

3. [212]

   The requirement that the confidential information be identified with specificity was a formulation adopted by the Full Court in Optus Networks following the approach of Gummow J in Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1990) 22 FCR 73 at 87. The Full Federal Court emphasised that:

4. [213]

   In Streetscape Projects (Australia) Pty Ltd v City of Sydney [2013] NSWCA 2 Barrett JA (at [159]-[162]) (Meagher and Ward JJA agreeing), made similar observations. Barrett JA drew particular attention to:

5. [214]

   His Honour said:

6. [215]

   These statements were approved by Beazley P (Macfarlan and Emmett JJA agreeing) in Marshall v Prescott [2015] NSWCA 110 at [50]-[57].

7. [216]

   In par 24 of the plaintiff’s statement of claim the “confidential information” said to have been published by the defendants in breach of the duty of confidence they owed to her was identified, with specificity, as follows:

8. [217]

   The identification of what is contended to be “confidential information” has allowed an assessment to be made as to whether the “information” is of a confidential nature, together with an assessment as to whether, as Barrett JA expressed, it “the whole or some part [of the information] has become the subject of general disclosure or notoriety”.

9. [218]

   In essence, it was the plaintiff’s case, as formulated in closing submissions, that the information in (a)-(c) is confidential information because it concerns her status as a victim of child sexual assault. The handwritten note in (d) is in a different category. It was her case that the note was personal to her because of the context in which it was written, and the duress to which she was subject when she wrote it (including under dictation from Mr Jensen), such that the note was, as her counsel described it, “confidential in and of itself”.

10. [219]

    As concerns the confidential information nominated as such in (a)-(c) above, the plaintiff also accepted that the alleged disclosure of that information depended upon the article actually identifying her as the elder of the sisters sexually abused by Mr Jensen. The plaintiff’s counsel also accepted the self-evident proposition that because none of the pieces of information in (a)-(c) have any connection to the plaintiff in the abstract, they do not have a confidential character in the abstract. In his closing submissions the position of the plaintiff was put as follows:

11. [220]

    Since the plaintiff did not advance the case that her identity as a victim of child sexual assault was a conclusion reached by readers who were able to deduce that she was the person referred to in the article because they were already possessed of some or all of the confidential information (or for that matter other information about her), the disclosure of the confidential information in (a)-(c) must be taken to mean that the articles actually revealed that the plaintiff, and not some unidentified child, was the victim of child sexual assault by revealing or disclosing information that the reader did not previously know about her. This is consistent with Nakhl Nasr v State of New South Wales; George Nasr v State of New South Wales [2007] NSWCA 101 at [127] where the Court of Appeal approved statements to the effect that "disclosure" involves making known to a person information that that person did not previously know.

12. [221]

    The defendants also submitted, correctly in my view, that the statutory language in s 578A(2) where the prohibition also applies to the publication of material being “likely to lead to the identification” of the plaintiff as a complainant in sexual assault proceedings had no application in the claim she brings for equitable compensation. The defendants emphasised, as they did when meeting the plaintiff’s claim for common law damages, that the articles do not name the plaintiff, her sister or any member of her family and that the note, as published, redacts her name and that of her grandfather. The only person named in the articles was Mr Jensen. Furthermore, the articles contain no photograph of the plaintiff nor anyone associated with her, and the name of the "regional town" where she lived is not named. In all respects, the defendants submitted, the article observes essentially the same precautions against the risk of identification as the publicly available remarks on sentence by Murrell SC DCJ (R v Lindsay Ronald Jensen [2007] NSWDC 15) on 16 January 2007, the press coverage of the trial in December 2006, and the sentence proceedings the following year (extracted at length above).

13. [222]

    Aside from the defendants’ submission that the articles manifestly do not identify the plaintiff (reflecting what was said to be the defendant’s awareness of the prohibition in s 578A on identifying her or publishing material likely to lead to her identification as a complainant in a prescribed sexual assault proceeding), the defendants’ foundational submission was that information adduced in open court, whether it is tendered in evidence or otherwise disclosed in the course of the proceedings, does not, by its nature, have the necessary "quality of confidence" to support a claim for breach of confidence. It follows, in the defendants’ submission, that information that is the subject of proceedings conducted in open court cannot be "confidential", and that any claim to the contrary is inimical to the principles of open justice. It was the defendants’ case that all of the information in (a)-(d) was information adduced in evidence at the Jensen trial and, subject only to the non-publication orders issued by the trial judge and the operation of s 578A of the Crimes Act, it was information in the public domain and available to be reported upon by media interests.

14. [223]

    Adherence to and promotion of the principle of open justice has been so frequently reaffirmed as fundamental in common law jurisdictions it hardly needs re-stating. In Commissioner of Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5, the High Court at [44] stated that:

15. [224]

    The NSW Court of Appeal adopted that approach in Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403. While the Court was concerned with a question of statutory construction, the observations of Bathurst CJ and McColl JA at [26] remain apposite:

16. [225]

    Subject to the intrusion of statute where the principle of open justice is restricted for competing public policy imperatives (as is the case with s 578A), the public importance of fair and accurate coverage of criminal trials by the media is clear. It was endorsed by Murrell SC DCJ when she refused an application by the plaintiff’s mother under s 292 of the Criminal Procedure Act that there be no publication of the trial transcript In R v Lindsay Ronald Jensen, District Court, Murrell DCJ, 18 December 2006, her Honour said (at [7]-[8]):

17. [226]

    The defendants also referred to Johns v Australian Securities Commission (1993) 178 CLR 408; [1993] HCA 56 which concerned the validity of a decision to release transcripts of compulsory examinations in a public hearing of a Royal Commission and whether, once in the public domain, the confidentiality attaching to the transcripts was lost such that equitable relief was not available to the examinees. At 432, Brennan J said as follows:

18. [227]

    At 463, in what might be interpreted as a more nuanced approach, Gaudron J said:

19. [228]

    In Missingham v Shamim [2012] NSWSC 288 Ward J (as her Honour then was) had occasion to consider the impact of Johns v Australian Securities Commission in proceedings where the plaintiff sought a permanent injunction to restrain the defendant from publishing information concerning the settlement of earlier Court proceedings, and the contents of the Deed of Settlement entered into in connection with those proceedings, other than as provided for in that Deed. One of the bases upon which the defendant resisted the granting of a permanent injunction was that since the relevant information had been posted on the NSW Caselaw website in a judgment, there was insufficient confidentiality in the information to be protected by the grant of injunctive relief. Her Honour distinguished the situation where there is an equitable obligation of confidence (the retention of the quality of confidence in material that has entered the public domain being essential to sustain a claim for equitable relief) and where the obligation of confidence is imposed by way of contract. In the latter case, as her Honour observed, whether the obligation attaches is a question of fact and degree. Her Honour said:

20. [229]

    Her Honour went on to find that there had not been disclosure at large of the information said to be confidential such as to destroy confidentiality in it or to lead to the exercise of discretion against the grant of a permanent injunction. At [68] her Honour said:

21. [230]

    In seeking to persuade the Court to find that despite the media coverage of the trial and the attention given to it in the book written by the second defendant, and despite the publicly available sentencing remarks of Murrell SC DCJ, “relative secrecy” attached to her identity as a victim of child sexual assault, the plaintiff submitted that the degree of accessibility to the material which the defendant identified as in the public domain is unmeasured and, for that reason, it cannot be assumed that the dissemination of the information was so widespread that the plaintiff’s identity as one of the children sexually abused by Mr Jensen, and the note she wrote retracting the allegations, are of such notoriety, or so squarely in the public domain, that the quality of confidence (concerning her identity as victim of child sexual assault) is lost. The defendants did not seek to prove the extent of publication of the confidential information, but merely the fact that it occurred and the various forms of media that were the source of that dissemination. The resolution of that question aside, it remained the settled position between the parties that the plaintiff’s claim for equitable relief will fail unless she makes good her contention that the articles published actually identified her as one of the children sexually abused by Mr Jensen since it is only by that conduct that the plaintiff can maintain the submission that they have breached their duty of confidentially to her.

22. [231]

    The plaintiff submitted that this Court would take the same approach Hampel J took in Jane Doe v ABC where at [131] her Honour rejected the submission that because the plaintiff's identity had been published in open court the information concerning her identity had lost the necessary quality of confidentiality. As I have already observed, that case is vastly different from this case if for no other reason than the defendant publishers actually named the plaintiff and, in that way, positively identified her as the victim of the sexual assault by her husband. In addition, the defendant publishers admitted that they breached the prohibition on publication in s 4(1A) of the Judicial Proceedings Reports Act. Were the defendants in this case to have flagrantly breached the prohibition in s 578A on the public revelation of the plaintiff’s identity as a victim of child sexual assault (in fact in any case where a person's sexual history or highly sexualised photographs, be that of a child or an adult, are published without authority or consent) I have no doubt that a case might be mounted for the equitable relief the plaintiff seeks. However, a quite different factual scenario is under consideration here. The defendants deny breach of s 578A. It is their case that the information identified and relied upon by the plaintiff as the "confidential information” does not identify her as a victim of child sexual assault, any more than the same or similar information in media reports, the sentencing judgment or the account of the abuse in the second defendant’s book has that effect.

23. [232]

    Having already found, as a matter of fact, that even were I satisfied that a right to sue for breach of statutory duty should be inferred from the terms of s 578A (which I was not), there was no actual identification of the plaintiff in the subject articles (even if there might have been material that was likely to lead to her identification by people sufficiently familiar with her life circumstances to draw that conclusion), her claim for equitable relief based on disclosure of what was said to be the confidential information in (a)-(c) fails.

24. [233]

    What remains to be considered is whether the plaintiff can make out a case for equitable compensation based solely upon publication of “the note” (the confidential information in (d) in [216] above).

25. [234]

    The plaintiff submitted that even were there no link to the plaintiff by the terms of the note, its publication is nonetheless capable of constituting a breach of the defendant's duty of confidence because the note is capable of bearing the quality of confidentiality essential to the equitable relief the plaintiff seeks. In this context the plaintiff submitted that the simple tender of the note and its admission into evidence in Mr Jensen’s trial did not deprive it of the character of an "intensely private document", there being no evidence in the proceedings before me that the content of the note was known to anyone other than the parties to the trial (and it would seem the plaintiffs mother and probably her father and then later her treating doctor) until such time as the second defendant was granted access to it as part of the materials within the court file.

26. [235]

    There was controversy as to whether the plaintiff could make a case for breach of confidence where the information in the note does not meet the test for confidential information because it does not identify her as a victim of sexual assault (as plainly it does not given the deliberate redaction of her name and that of her grandfather by the defendants prior to publication). The plaintiff submitted that it is open to this Court to find that it is the reproduction of the handwritten note, in a photographic form, in the context of the article about the plaintiff and how she came to write it, to which confidentiality is said to attach.

27. [236]

    I am not satisfied that the information in the note (that is the text) is information to which an obligation of confidence attaches, if for no other reason than it was a document to which the second defendant was given access for the stated purpose of potentially using the information as a journalist. The only restriction which applied to his entitlement to “use” the note was that it not be photocopied. The further question then arises as to whether I am persuaded that the photographic image of the note is of such a “confidential quality” in itself that to publish it was, in effect, to publish a confidential communication between a victim of sexual assault and her abuser that would warrant the intervention of equity.

28. [237]

    In final submissions the plaintiff's case was that the second defendant must have appreciated, at the very least when he found the original note in the court file in 2016, that it was created in a very particular context, namely by a child who had been the subject of sexual assault by an elder of the Church and who had written the note at the direction of the man who abused her, or his agents, and that the note was (and the second defendant should have known it was), as the plaintiff’s senior counsel described it:

29. [238]

    Whether the second defendant gained the knowledge about the provenance of the note from his reading of the trial transcript at the point in the trial when the note was tendered, or perhaps in counsels’ addresses about the probative weight of the note as evidence, or whether he gained that knowledge from information provided to him by the child's father (an inference that squarely arises from the attribution of the footnote in the book written by the second defendant) is not to the point. The question is whether there is any relevant analogy to be drawn between the publication of the note as an image and a line of authority to which the plaintiff referred where, notwithstanding the absence of what might be referred to as "a classical relationship of confidence”, the Court will impose an obligation of confidence on the recipient or possessor of information where the circumstances in which access was gained to it imports that obligation. In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63, at [34], Gleeson CJ accepted that “equity may impose obligations of confidentiality even though there is no imparting of information in circumstances of trust and confidence.

30. [239]

    The plaintiff referred to Campbell v MGN Ltd [2004] 2 AC 457 in which the House of Lords awarded damages for breach of confidence against a newspaper which published details of a female model’s attendance at Narcotics Anonymous and a photograph of her leaving the premises where the meeting was convened, and to Giller v Procopets [2008] VSCA 236; (2008) 24 VR 1 as examples of circumstances in which equity may intervene.

31. [240]

    In my view, neither case support the attribution to the second defendant of a duty of confidence not to reproduce a photograph of the note in the published article, in circumstances where the note does not, in any relevant sense, identify the plaintiff as its author, as distinct from it being referable to an unidentified child having written it at the behest of her abuser. This is in stark contrast to the photographic images of the plaintiff in each of the cases upon which the plaintiff relied where the very fact of the photographs and the circumstances in which the plaintiff was clearly represented in them was relied upon as importing the quality of confidentiality. Another point of distinction between those cases and this case is that the Registrar granted access to the court file to a person who declared that his interest in the court file was as a journalist. While access was confined to reading the materials in the file, and it must be assumed reproducing their contents but by means other than photocopy or photography, including, for example, by notetaking for the purposes of accurate reporting of the court proceedings, and while it is also clear that the second defendant took a photograph of the note contrary to the terms upon which access was granted, that does not persuade me that the information comprised in the note, including the form in which it was written, was “surreptitiously obtained” or so inherently confidential that it would be “unconscientious” for the second defendant to be relieved of respecting the plaintiff’s confidentiality as its author.

32. [241]

    In Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWCA 430; (2012) 295 ALR 348 Campbell JA (with whom Macfarlan JA agreed), said the following (at [100]):

33. [242]

    In comments that are apposite to the plaintiff’s case, his Honour went on to say:

34. [243]

    The plaintiff alleges that the confidential information in each of (a)-(d) was not only imparted to the defendants in circumstances importing an obligation of confidence, because a reasonable person in his position would have recognised that the information to which he was given access, including the form of the note, was in confidence, but because of the second defendant’s obligation (and that of the first defendant) to adhere to the terms of the suppression order made by the trial judge and to abide by the legislative requirement in s 578A(2) that the plaintiff not be identified as a complainant in prescribed proceedings. In circumstances where it was clear that the plaintiff had not consented to publication of her identity as a victim of child sexual abuse, and the judge had not authorised disclosure of the plaintiff’s identity as a complainant in prescribed proceedings under s 578A(4), the plaintiff submitted that she is entitled to compensation for breach of the defendants’ equitable duty.

35. [244]

    The defendants submitted that just as there is no private right to sue at common law for breach of the statutory prohibition enacted by s 578A, there is no equitable right of redress for breach of what is said to be an equitable duty not to contravene that same prohibition. I accept that submission.

Breach of suppression order

1. [245]

   The plaintiff contends that the publication of the articles by the defendants was in breach of the suppression order made by Knight DCJ on 13 April 2017. The suppression orders made by his Honour are set out at [30] above.

2. [246]

   I am not satisfied that the plaintiff has made out a case that the defendants breached the suppression orders made by Knight DCJ in any relevant respect. There is no publication of evidence as to the “particular manner” in which the plaintiff was assaulted by Mr Jensen nor has evidence of her emotional and physical reactions to Mr Jensen’s sexual conduct been published. Similarly there is no evidence that publication of material annexed to the affidavit of Ms Purches occurred, and, while the note was in evidence in the criminal trial, I am unable to see how it could be sensibly construed as evidence “of the attacks made on the personal character” of the plaintiff.

Orders

1. [247]

   Accordingly, I make the following orders:

   1. (1)

      Verdict for the defendants.

   2. (2)

      The plaintiff is to pay the defendants’ costs.