Citation: SafeWork NSW v Edstein Creative Pty Ltd (No. 3) [2023] NSWDC 335
Court: District Court of NSW
Date: 29 August 2023
Judge(s): Russell SC DCJ
Background
SafeWork NSW brought criminal proceedings against Edstein Creative Pty Ltd, alleging a breach of the primary health and safety duty under the Work Health and Safety Act 2011 (NSW). The prosecution alleged that Edstein failed to ensure the health and safety of its workers and that, as a result, one worker (referred to throughout as "AB") was exposed to high levels of airborne Respirable Crystalline Silica (RCS), causing him to develop silicosis or accelerated silicosis.
A newspaper published an article about the proceedings that identified AB by name. AB became aware of the article when a workmate pointed it out to him. He received over 20 phone calls in two days from friends and associates who had seen his name and were concerned about him. Apart from his partner and mother, AB had not disclosed his illness or exposure to anyone.
AB filed a Notice of Motion seeking a non-publication order under the Court Suppression and Non-Publication Orders Act 2010 (NSW) to prohibit publication of his name and any information tending to identify him. Before the hearing, the newspaper voluntarily amended its online article to replace AB's name with "the worker," and AB withdrew his application for a direct order against the newspaper. He nonetheless pressed the broader non-publication order.
Legal Issues
- Whether the court should make a non-publication order under the Court Suppression and Non-Publication Orders Act 2010 (NSW) prohibiting publication of AB's name and identifying information
- Whether the order was necessary to protect AB's safety under s 8(1)(e) of that Act
- Whether the order was necessary to prevent prejudice to the proper administration of justice under s 8(1)(a) of that Act
- How the principle of open justice, which s 6 of the Act requires courts to treat as a primary objective, interacts with the grounds for suppression
Decision
The court dismissed the application. Neither of the two grounds AB relied upon was made out on the evidence.
On the safety ground, the court found that AB had established distress and embarrassment, but not that his physical safety was at risk. The evidence showed that callers were concerned friends and associates, not a threatening audience. The court noted that distress or embarrassment, without more, does not satisfy the requirement that an order be "necessary" to protect a person's safety. The court observed that the legislature's specific provision for sexual assault complainants to obtain orders on grounds of distress suggests that, for other types of offences, distress or embarrassment alone is insufficient.
On the administration of justice ground, the court declined to make an order. Both AB and his partner had handled inquiries by simply stating that the matter was before the courts and that they could not discuss it further. There was no evidence that anyone had pressed them beyond that point. The prosecutor also noted that no further judgment was expected before trial, so there was no imminent risk of identifying information being published.
Notwithstanding the dismissal, the court observed that there was no impediment to open justice in referring to AB by pseudonym in its judgments at this interlocutory stage, consistent with the approach taken in its two previous judgments in the matter. The court noted that it would be a matter for the trial judge whether to continue that practice at trial.
Orders Made
- The Notice of Motion filed on 21 July 2023 was dismissed.
- Each party was ordered to pay his or its own costs of the Notice of Motion.
Key Takeaways
- Distress and embarrassment caused by unwanted publicity, without evidence of a risk to physical safety, does not satisfy the ground in s 8(1)(e) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) that an order be "necessary to protect the safety of any person."
- The District Court confirmed that the legislature's specific provision for sexual assault complainants to obtain orders on the basis of distress implies that distress or embarrassment alone is not a sufficient ground for other categories of proceedings.
- Under s 6 of the Act, the public interest in open justice is a primary objective that courts must weigh; applications for suppression or non-publication orders must clear a meaningful threshold before that interest is displaced.
- A court's voluntary practice of referring to a witness by pseudonym in interlocutory judgments does not constitute a formal non-publication order and does not require a separate statutory basis where no party opposes the approach.
- Where a witness and those close to them have effectively managed inquiries by pointing to ongoing proceedings, and there is no evidence of persistent or threatening contact, the administration of justice ground under s 8(1)(a) is unlikely to be established.
Legislation and Cases Referenced
Legislation
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 3, 6, 7, 8
- Work Health and Safety Act 2011 (NSW), ss 19, 32
Cases
- AB (A Pseudonym) v CD (A Pseudonym) [2019] HCA 6
- AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46
- Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; (2012) 83 NSWLR 52
- R v AB (No 1) [2018] NSWCCA 113
- SafeWork NSW v Snap Programs Ltd; SafeWork NSW v Department of Communities and Justice [2020] NSWDC 455