Citation: [2022] NSWDC 405
Court: District Court of New South Wales
Date: 09 September 2022
Judge(s): Wilson SC DCJ
Background
A barrister (referred to throughout as the Protected Person), retained to act for an accused person, was the subject of two articles published in the Daily Telegraph on 3 May 2022 and 10 May 2022. On 20 July 2022, the court made suppression and non-publication orders covering the barrister's identity, finding those orders were necessary to protect his safety under the Court Suppression and Non-Publication Orders Act 2010.
Despite those orders, both articles remained accessible online after 20 July 2022. The Protected Person brought a Notice of Motion on 10 August 2022 seeking a "take-down" order requiring the publisher, Nationwide News, to remove the articles from its website.
The publisher opposed the application, principally on the basis that requiring removal of the articles would conflict with the public interest in open justice. There was no suggestion that the reporting had been unfair or inaccurate.
Legal Issues
- Whether the court should make a take-down order requiring the publisher to remove previously published articles from its website, to give effect to existing suppression and non-publication orders
- Whether articles remaining accessible online after a suppression order was made could cause the publisher to be in breach of that order each time the articles were retrieved by a user
- Whether the earlier finding that the orders were necessary to protect the Protected Person's safety continued to justify the orders
Decision
Issue 1: Whether the suppression and non-publication orders remained justified
The court reaffirmed its earlier conclusion that the public interest in open justice was outweighed by the risk to the Protected Person's safety (at [4]). The applicable test under section 8(1)(c) of the Act is the "calculus of risk" approach, which requires consideration of the nature, imminence and degree of likelihood of harm; the provision extends to psychological safety as well as physical safety (at [5]). Once satisfied that an order is necessary, the court has no discretion to refuse it (at [5]).
Issue 2: Whether a take-down order was required to give effect to the existing orders
The court accepted the Protected Person's submission that, without a take-down order, the suppression and non-publication orders would be rendered a nullity (at [8]). The judge also noted that the publisher could not answer whether the continued online availability of the articles meant the publisher was already in breach of the suppression orders each time the articles were retrieved (at [8]). On that basis, the court made take-down orders as consequential orders necessary to maintain the integrity of the suppression regime (at [9]).
Orders Made
- The Daily Telegraph was ordered to remove from its website the article published on 3 May 2022 (titled in part "Barrister Denies Allegations of Sex with Client") by 11:59 pm on 12 August 2022
- The Daily Telegraph was ordered to remove from its website the article published on 10 May 2022 (titled in part "Barrister Suspended by NSW Bar") by 11:59 pm on 12 August 2022
- Both removal orders apply throughout the Commonwealth of Australia
- The original suppression and non-publication order of 20 July 2022 was varied to remain in place for a period of 20 years or until further order
- Liberty was granted to the publisher to apply to vary the orders if the Protected Person's circumstances materially change
Key Takeaways
- The District Court confirmed that take-down orders requiring removal of previously published online articles can be made as consequential orders to give effect to, and preserve the integrity of, existing suppression and non-publication orders (at [8]-[9]).
- Where articles identifying a protected person remain accessible online after a suppression order takes effect, the publisher may risk breaching that order each time the articles are retrieved by a user (at [8]).
- Under section 8(1)(c) of the Court Suppression and Non-Publication Orders Act 2010, the "calculus of risk" approach governs whether an order is necessary to protect a person's safety, encompassing psychological as well as physical safety, and the court has no discretion to refuse the order once necessity is established (at [5]).
- A finding that the public interest in open justice is outweighed by safety considerations is not reopened merely because a publisher resists a consequential take-down order on open justice grounds, where that question was already determined when the original suppression orders were made (at [7]).
- Suppression orders can extend to 20 years' duration where the underlying safety risk justifies ongoing protection, subject to liberty to apply if circumstances materially change.
Legislation and Cases Referenced
Legislation
- Court Suppression and Non-P ublication Orders Act 2010
Cases
- AB v R (No 3) [2019] NSWCCA 46
- Hogan v Australian Crime Commission [2010] HCA 21