GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCATrans 40 (3 April 2023)

Last Updated: 4 April 2023

[2023] HCATrans 040

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S150 of 2022

B e t w e e n -

GLJ

Appellant

and

THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF LISMORE ABN 72 863 788 198

Respondent

Application for non‑publication orders

JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON MONDAY, 3 APRIL 2023, AT 2.14 PM

Copyright in the High Court of Australia
HER HONOUR: As the Court is sitting remotely, I will announce the appearances for the parties.

MR J.A.G. McCOMISH appears for the appellant. (instructed by Ken Cush & Associates)

MS D.H. TANG appears for the respondent. (instructed by Hannigans Solicitors)

HER HONOUR: Can I say that I have read, first, the application for suppression and non‑publication orders filed by the appellant on 24 March 2023; second, the affidavit of Mark Geoffrey Barrow filed by the appellant, also on 24 March 2023; and the appellant’s submissions in support of the application filed on 31 March 2023. I am unable to see any other appearances other than the appellant and respondent. Mr McComish, is there anything you wish to add to your application?

MR McCOMISH: Thank you, your Honour. Nothing other than to formally move on that application to read that affidavit and rely on that short written submission. As your Honour appreciates, the application is not contentious between the parties, but I do want to record my gratitude to Ms Tang and her client for their input into earlier drafts. Other than that, the nature and subject matter of the appeal bespeak the need for the order, which is not controversial.

Unless there was anything further, that is all I propose to say, your Honour.

HER HONOUR: Thank you. Ms Tang, anything you wish to say?

MS TANG: No. Thank you, your Honour.

HER HONOUR: Thank you. I am now going to give my reasons explaining why I am satisfied that I should make orders largely as proposed between the parties.

The appellant has applied under section 77RE of the Judiciary Act 1903 (Cth) for suppression and non‑publication orders in relation to the identity of the appellant and other persons who may be identified by materials filed in this matter as alleged victims of sexual abuse.

Under s 77RE(1) of the Judiciary Act, the High Court may prohibit or restrict the publication or other disclosure of, relevantly, information tending to reveal the identity of or otherwise concerning any party to a proceeding or any person who is related to or associated with any party to a proceeding. The grounds for the making of such an order include that the order is necessary to prevent prejudice to the proper administration of justice: s 77RF(1)(a) of the Judiciary Act. By s 77RD of the Judiciary Act, in deciding whether to make a suppression order or non-publication order, the Court “must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice”.

Section 77RG(2) of the Judiciary Act provides that certain people are entitled to appear at a hearing of an application for a suppression or non‑publication order. To this end, the application was listed for hearing in a notice identified as “Application for suppression and non‑publication orders” published on 28 March 2023. No person has appeared at the hearing today other than the parties.

A suppression or non‑publication order must specify the information to which the order applies with sufficient particularity to ensure that the order is limited to achieving the purpose for which it is made: s 77RG(5) of the Judiciary Act. In deciding the period for which an order is to operate, the Court is to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made: s 77RI(2) of the Judiciary Act.

Equivalent orders were made below, including under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW).

Alleged victims of child sexual abuse may suffer serious psychological harm if their identity is disclosed against their wishes. Such disclosure may also discourage other potential victims of child sexual abuse accessing the justice system to ascertain if they can vindicate their allegations.

For these reasons I am satisfied that the orders sought are necessary to prevent prejudice to the proper administration of justice. The orders I make are:

1. Pursuant to s 77RE of the Judiciary Act 1903 (Cth), and on the ground in s 77RF(1)(a) of that Act that the orders are necessary to prevent prejudice to the proper administration of justice:

(a) the author of the statement being annexure SAT-5 to the affidavit of Samuel Alexander Tierney dated 11 February 2021 be referred to by the pseudonym “CWA”;

(b) the name and identity of the appellant, and any other person disclosed in the Appellant’s Book of Further Material against whom a sexual offence is alleged to have been committed, be suppressed; and

(c) there be no disclosure other than disclosure in accordance with Order 2, whether by publication or otherwise, of any information tending to reveal the identity of the appellant or any other person disclosed in the Core Appeal Book and/or Appellant’s Book of Further Material against whom a sexual offence is alleged to have been committed (“the Sensitive Information”).

2. Order 1 does not prevent:

(a) the Court, any Justice of the Court, the Registrar of the Court, and such Court staff as the Court or a Justice of the Court considers appropriate; and

(b) the parties and their legal representatives,

from disclosing the Sensitive Information as between themselves and so far as is necessary to conduct, regulate or otherwise participate in this proceeding, as the case may be.

3. Subject to any further order, the period for which these orders will operate that is specified for the purposes of s 77RI of the Judiciary Act 1903 (Cth) is 10 years from the date of this order.

4. Liberty is reserved to any party to the appeal proceedings or any person listed in s 77RG(2) of the Judiciary Act 1903 (Cth) to apply by summons and supporting affidavit for an order varying Orders 1 to 3, including by extending the period of 10 years specified in Order 3.

5. The costs of and incidental to the making of these orders be costs of the appeal.

If there is nothing else, those orders are made and the written reasons for judgment will be made available and published. Is there nothing else arising?

MR McCOMISH: Nothing from the appellant, your Honour. Thank you very much.

HER HONOUR: Thank you. Ms Tang.

MS TANG: No, your Honour.

HER HONOUR: Thank you very much. Adjourn the Court, please.

AT 2.22 PM THE MATTER WAS ADJOURNED