In the matter of the application of TSK (a pseudonym) [2023] NSWSC 494 (11 May 2023)

Last Updated: 9 August 2023

Supreme Court New South Wales

Case Name:	In the matter of the application of TSK (a pseudonym)
Medium Neutral Citation:	[2023] NSWSC 494
Hearing Date(s):	14 April 2023
Date of Orders:	11 May 2023
Decision Date:	11 May 2023
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	(1) Relief under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) is refused; (2) Under s 10 of the said Act, direct that these reasons and orders are not to be published in unrestricted form on NSW Caselaw for a period of 28 days from today to enable the plaintiff, if so advised, to appeal; (3) Liberty to apply to extend Order (2) in the event an appeal is instituted; (4) No order as to costs; (5) The proceedings are otherwise dismissed.
Catchwords:	CIVIL PROCEDURE — suppression and non-publication — contemplation of a recrudescence of adverse media coverage — plaintiff contends proceedings would insight the very kind of damage for which redress is sought — whether suppression orders required to prevent prejudice to the proper administration of justice or to protect the safety of the putative plaintiff’s children
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8, 10 Crimes Act 1900 (NSW) Legal Profession Uniform Law 2014 (NSW)
Cases Cited:	AB (a pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSW CCA 46 AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6; (2019) 93 ALJR 321 Ex Parte, The Times (Court of Appeal (Civil Division), Staughton LJ, 31 March 1998, unreported) Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 Joukhador as principle solicitor of Thomas Booler Lawyers v NSW Commissioner of Police [2017] NSWSC 1287 Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 Scott v Scott [1913] AC 417 R v Legal Aid Board, ex parte Kaim Todner (the firm) [1998] EWCA Civ 958; [1999] QB 966
Category:	Procedural rulings
Parties:	Marcell Joukhador
Representation:	Counsel: Ms K Nomchong SC with Mr S Tzouganatos (Plaintiff) Solicitors: Turner Freeman Lawyers (Plaintiff)
File Number(s):	2023/149522

JUDGMENT

1. By summons handed up in court when I was duty judge on 14 April 2023, the plaintiff applied ex parte for an order that he have leave to commence and continue a claim for damages against the State of New South Wales for malicious prosecution under a pseudonym “TSK”. The order was sought under the provisions of the Court Suppression and Non Publication Orders Act 2010 (NSW) (“the Act”). The orders sought go further than simply permitting the proceedings to be conducted under a pseudonym. Orders on an interim and continuing basis are sought under ss 7(a) and 10 of the Act prohibiting the publication or other disclosure of information tending to reveal the identity of the plaintiff or any person who is related or otherwise associated with the plaintiff in the proceeding. The grounds invoked are those specified in s 8(1)(a) and (c) that the order is necessary to prevent prejudice to the proper administration of justice or to protect the safety of a person.
2. Upon the undertaking of the plaintiff’s solicitor to file the summons in the registry and tender the prescribed fee in respect of it, I made orders permitting the plaintiff to proceed on the unfiled summons which I treated as being returnable instanter. The undertaking has now been discharged by performance.

Background facts

3. The plaintiff is a solicitor practising principally in the field of personal injuries law. His practice includes acting on behalf of plaintiffs who have suffered personal injury in motor accidents. On 20 September 2017, he was arrested as part of a police operation known as Strike Force Ravens, an investigation into the making of allegedly fraudulent claims for motor accident damages. He alleges the police investigation was prompted by the work of a group formed under the auspices of the State Insurance Regulatory Authority (“SIRA”), named the NSW CTP Fraud Taskforce. The New South Wales Police Force was represented on that ad hoc body.
4. On 5 April 2017, search warrants were executed at his places of professional practice. The execution of the search warrant, his later arrest and the prosecution which followed generated a good deal of media coverage. Much of the coverage is attached to the plaintiff’s solicitor’s affidavit sworn on 6 April 2023, read in support of his application. The media reports included television news and current affairs reports. I have read each of the reports exhibited to the plaintiff’s affidavit and I have watched the recordings of the television reports, exhibited as “MJ2” and “MJ3”. It is apparent to me that pejorative and disparaging language was used in media reports in the matter, and also when he was brought before the Local Court on 21 September 2017 and 26 September 2017. This included certain necessary participants in the legal process who ought to have fully appreciated each occasion as one for restraint (MJ1, pp 88–96; pp 107-127).
5. The plaintiff was charged with 12 counts of serious criminal offences consisting of one count of knowingly directing the activities of a criminal group contrary to s 93T(4A) Crimes Act 1900 (NSW) and 11 counts of dishonestly obtaining a financial advantage, or causing disadvantage, by deception contrary to s 192D (1)(b) of the same Act. The s 93T offence carries a maximum penalty of imprisonment for 15 years and each of the s 192D offences, imprisonment for 10 years under s 192E. Clearly the charges were very serious.
6. On 23 October 2018, prior to committal, the most serious charge of directing the activities of a criminal group and one of the fraud charges were withdrawn by the Director of Public Prosecutions (“DPP”) who had by then assumed carriage of the prosecution. All remaining charges were withdrawn on 25 July 2019, 8 months after the plaintiff had been arraigned in the District Court. The DPP made it clear to the plaintiff’s legal advisers, quite exceptionally, that an application for costs would not be opposed.
7. On the day of the plaintiff’s arrest, the Law Society of New South Wales provisionally suspended his practising certificate. This provisional suspension was confirmed on 14 October 2017 under s 77 Legal Profession Uniform Law 2014 (NSW). His practising certificate was not re-instated until 22 August 2019, one month after the prosecution was dropped.
8. From his affidavit, it is clear, as would be expected, that the plaintiff suffered significant financial loss due to his inability to practise. The adverse publicity generated by news of his arrest and prosecution, and of course the prosecution itself, caused significant injury to his feelings, distress and vexation. His previous good reputation was sorely injured.
9. It is also apparent that the plaintiff’s wife (from whom he was separated), and perhaps more significantly his children, who were students at a prestigious private school, suffered emotionally because of the effect of the publicity through the school community. The plaintiff’s children were subject to bullying on social media, and in the playground. From his affidavit (at [42]), this continued for a period of about three months until a member of the school staff intervened by speaking to other students and their parents. I infer his or her intervention was successful in quelling the unfair comments and conduct directed at the children.
10. I also think it appropriate to record from the evidence, that the plaintiff, presumably in his own name, brought, and settled, defamation proceedings in the Federal Court of Australia against Channel 10 (Affidavit [28]). He has had mixed success in negotiating with media organisations for the take-down of articles about his arrest and prosecution from the internet. Proceedings challenging the Police Commissioner’s seizure of documents from his practice were heard and determined on 18 September 2017: Joukhador as principal solicitor of Thomas Booler Lawyers v NSW Commissioner of Police [2017] NSWSC 1287. The judgment remains available on NSW Caselaw.
11. Significantly, “in an attempt to correct the record” (Affidavit [69]) on the advice of a public relations consultant he had retained, he gave an interview to the Daily Telegraph resulting in the publication of a further article on 8 September 2019. The plaintiff was unhappy with the article which he feels repeated the allegations previously made against him. A comment attributed to a spokeswoman for the NSW Police Force failed to acknowledge that the prosecution against him had collapsed. However, the opening paragraph of the article states that the “charges ... were eventually dropped” and said that the plaintiff, “will sue the New South Wales Police for malicious prosecution”.

Plaintiff’s submissions

12. Ms K Nomchong SC, who appears for the plaintiff with Mr S Tzouganatos, relied upon the grounds specified in s 8(1)(a) and (c) of the Act, that is that the order is necessary either to prevent prejudice to the proper administration of justice or to protect the safety of persons, being the plaintiff’s children. In helpful written submissions, the central premise was advanced on the basis that having regard to the plaintiff’s past experience with reporting by news media organisations, before and after the withdrawal of the charges, it was likely that there would be further media attention of the same kind whereby the now dropped allegations against him would be reventilated and the damaging footage of his arrest would be reshown. Learned senior counsel argued (Written Submissions [34]):

“It is antithetical to the administration of justice if, by bringing a claim for redress in the justice system, wherein the plaintiff is seeking compensation for past loss arising out of his arrest, charging and incarceration and the consequent damage to his reputation and legal practice, that he would incite further damage of the same kind”.

13. In relation to the safety of the plaintiff’s children, the following was submitted (Written Submissions [39]):

“A re-agitation of the adverse media attention will no doubt be worse now that [the children] are older. They are [XX] years and [Y] years old. They attend a private school in Sydney where both parents and students are likely to see media publication. The capacity for the children to be targeted face to face, but more likely through social media bullying is extremely high”.

It was submitted that the risk to the psychological health of the plaintiff’s children “is a genuine consideration and not one to be taken lightly”.

Principles

14. I am indebted to counsel for the succinct summary of the applicable principles contained in the written submission. As they acknowledge, the starting point is that “[a] Court must take into account the primary objective of the administration of justice is to safeguard the public interest in open justice”: s 6 of the Act.
15. It has been accepted in the authorities concerning the operation and application of the Act that the statement concerning the general law prior to enactment of the Act in John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 (at 476–477, per McHugh JA), remains apposite under the Act:

“The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the court room. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting the publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient.” (My emphasis)

(see: Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSW CA 403 at [28]–[31], per Bathurst CJ and McColl JA).

16. In the context of the present case, I think it appropriate to refer to one passage from the seminal English case of Scott v Scott [1913] AC 417. While reference is often made to the speech of Viscount Haldane LC explaining the general principle (at 437–438) as referred to in Rinehart, given the nature of the present application, it seems appropriate to me to also refer, as Bathurst CJ and McColl JA did (at [35]), to Earl Loreburn’s speech (at 446) in the following terms:

“...in all cases where the public is excluded with admitted propriety, the underlying principle, as it seems to me, is that the administration of justice would be rendered impracticable by their presence, whether because the case could not be effectively tried, or the parties entitled to justice would be reasonably deterred from seeking it at the hands of the Court”. (My emphasis)

17. While “necessary” in the statutory sense is protean, the context here is that a public interest identified by the provisions of s 8 of the Act is sufficient to displace the fundamental open justice principle. However, as Bathurst CJ and McColl JA said in Rinehart (at [31]):

“Significantly, an order is “not necessary” if it appears to the court “to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some single”, balancing exercise, the order appears to have one or more of those characteristics”.

The quote is from Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 at [31]: see also, Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 at [8]; Whealy JA agreeing at [106].

18. Turning specifically to s 8(1)(c), it is unnecessary for the plaintiff to prove that, absent an order, the relevant risk of harm would probably materialise. Rather, what is called for is a “calculus of risk” approach “requiring the Court to consider the nature, imminence and degree of likelihood of harm occurring to the relevant person”: AB (a pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46 (at [56]–[58], per the Court). Protection of the safety of a person extends to a person’s psychological safety as well as physical safety: AB v R (No 3) at [59]. However, as Nettle J said in AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6 at [15]:

“... it should be regarded as sufficient to satisfy the test of “necessary to protect the safety of any person” that, upon the evidence, the court is satisfied of the existence of a possibility of harm of such gravity and likelihood that, without the orders sought, the risk of prejudice to the safety of the person would range above the level that can reasonably be regarded as acceptable”. (My emphasis)

19. Finally, what is involved is making an evaluative judgment, not the exercise of a discretion. Where, when viewed through the prism of the primary objective of safeguarding the public interest in open justice, a necessity described in one or other of the paragraphs of s 8(1) is persuasively established, the Court should not shrink from making the order sought.

Determination

20. The importance of the open justice principle must be kept firmly in mind throughout. This has been fully articulated in the passage from John Fairfax v Police Tribunal (NSW) quoted above at [15]. The practical scope of the orders sought by the plaintiff must also be borne in mind. Given the notoriety of his arrest, being charged with serious offences and the course of the prosecution against him, the making of an order prohibiting the publication or other disclosure of information tending to reveal his identity or the identity of any person related to or associated with him would effectively mean that the proceedings would need to be entirely conducted in camera. Once it was known that the contemplated proceedings for malicious prosecution concerned a solicitor engaged in personal injuries practice, arrested on organised crime and fraud charges related to bogus CTP claims, which were later dropped resulting in the solicitor being awarded a cost certificate, it would take little, or no effort, given the amount of information remaining on the internet, for the plaintiff to be identified. It does not follow from this that his wife or children would be so identified. I am not satisfied that the plaintiff’s concerns about the possible recrudescence of previous media reports is sufficient to engage the interest sought to be protected by s 8(1)(a), or if they are they displace the open justice principle to the extent that the proceedings must be conducted in secret.
21. To be clear, the open justice principle is necessary, to deter inappropriate behaviour on the part of the Court, maintain the public’s confidence in the administration of justice, and to enable the public to know that justice has been administered impartially: R v Legal Aid Board; ex parte Kaim Todner (a firm) [1998] EWCA Civ 958; [1999] QB 966 at 977; Ex parte P, The Times (Court of Appeal (Civil Division), Staughton LJ, 31 March 1998 (unreported, transcript no 431 of 1998); approved in Rinehart v Welker at [47]). I am not persuaded that this interest is displaced by the protection of the plaintiff’s personal and professional interests in the matter being kept secret. Indeed, I am not satisfied that his perhaps understandable desire in that regard should be equated with prejudice to the administration of justice. I am not satisfied that an order that achieves purpose is necessary to protect the interest covered by s 8(1)(a).
22. I should also say, I repeat, having considered all of the press reports exhibited to the plaintiff’s affidavit including the viewing of the audio-visual recordings of television reports, I am not persuaded that there is any real possibility that the contemplated civil proceedings would generate the same level of media interest. Such media interest as might be shown is unlikely to lead to reports expressed in the same pejorative terms feared by the plaintiff. Were it otherwise, he would doubtless have his remedy as he has already pursued, apparently, against Channel 10.
23. Moreover, whether advisedly or not, he voluntarily put himself in the public eye again by engaging in an interview with the Daily Telegraph and informing the reporter that he proposed to bring the contemplated civil proceedings. Those actions cannot be recalled. I do not criticise the plaintiff, but that is the reality: the matter is already in the public domain through his own actions.
24. It is not for me to make overly broad or sweeping statements about what specific interests may engage the exceptions to the open justice principle capable of being established under s 8(1)(a). But I venture the view that it would be a rare case in which a plaintiff contemplating civil proceedings for damages for a wrong done to him or her would be able to demonstrate that secrecy was necessary to prevent prejudice to the administration of justice. The Court has to consider both sides of the record and the proposed defendant is entitled to the advantages of a public hearing; as Scott v Scott and R v Legal Aid Board both demonstrate, were both parties to agree that the case be conducted under “the cloak of anonymity”, that is when the Court has to be most vigilant to ensure that the general principle is not eroded.
25. I have also considered whether the denial of an order under the Act may have a stultifying effect on the plaintiff, but I am not of the view that possibility displaces the other considerations I have referred to. Every potential plaintiff must consider whether the action is worth the candle. This extends to weighing any adverse ramifications of possible publicity against the potential gains flowing from a favourable outcome of the proceedings. I am not satisfied that the ground for a non-publication order provided by s 8(1)(a) has been made good.
26. Turning then to the position of the plaintiff’s children and the application of s 8(1)(c). Naturally the law is always solicitous and protective of the interest and safety of children. One readily appreciates that other children can be cruel and that the opportunity for bullying is greatly enhanced by the nearly ubiquitous resort to social media platforms. However, there is no prospect whatsoever, say, that media organisations would be so indiscreet as to mention the children or their school. It is impossible to see how a fair and accurate report of any civil proceedings commenced could involve them. So far as the risk of personal bullying is concerned, I am impressed by the consideration that such misbehaviour was quelled by appropriate intervention by the school within a period of about 3 months of their father’s arrest and prosecution, before its abandonment, first being in the news. This fact is significant for the assessment of future possibilities.
27. While I accept that young people can be readily upset and emotionally hurt by bullying of all kinds, I am not persuaded that there is any real risk of psychological injury. I am not satisfied “of the existence of a possibility of harm of such gravity and likelihood that, without the orders sought, the risk of prejudice to the safety of” the plaintiff’s children ranges “above the level that can reasonably be regarded as accepted”. Any litigation might attract publicity. All litigation causes stress, not only for the litigant, but often for the litigant’s family. This is a regrettable, but unavoidable incident of going to court.

Orders

28. For these reasons my orders are:
    • (1) Relief under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) is refused;
    • (2) Under s 10 of the said Act, direct that these reasons and orders are not to be published in an unrestricted form on NSW Caselaw for a period of 28 days from today to enable the plaintiff, if so advised, to appeal;
    • (3) Liberty to apply to extend Order (2) in the event an appeal is instituted;
    • (4) No order as to costs;
    • (5) The proceedings are otherwise dismissed.

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Amendments

09 August 2023 - Minor typographical and syntactical errors