AB v NSW Commissioner of Police [2022] NSWSC 429

AB v NSW Commissioner of Police [2022] NSWSC 429

The Court held that the circumstances were sufficiently special or unusual to justify varying the non-publication order and releasing the plaintiff from the Harman undertaking to the limited extent sought. The relevant material was largely brought into existence to protect the plaintiff's interests, the non-publication order had been sought for his safety and benefit, the AFP and AFP Officer A did not object and no identifiable prejudice to them or NSWPF Officer B was shown. The proposed recipients were capable of maintaining confidentiality, the safe hands process addressed confidentiality concerns, disclosure to the LECC could serve a public interest in investigation, and disclosure to...

Jurisdiction
Australia
Judgment Date
12 April 2022
Procedural Posture
Civil Proceedings Seeking Damages, Equitable Compensation and Judicial Review Arising From Alleged Police Misconduct in Dealings With the Plaintiff as a Human Source / Interlocutory Notice of Motion to Vary a Non Publication Order and Obtain Limited Release From the Harman Undertaking
Outcome
Order 4 was granted; the plaintiff was permitted limited disclosure of specified material to specified public authorities, and the defendants were ordered to pay the plaintiff's costs of and incidental to the notice of motion.
Legal Topics
['harman Undertaking' 'variation of Non Publication Order' 'disclosure of Subpoenaed Documents' 'human Sources and Witness Protection' 'safe Hands Process']
['civil Procedure' 'police Law' 'confidentiality and Non Publication Orders'] ['harman Undertaking' 'variation of Non Publication Order' 'disclosure of Subpoenaed Documents' 'human Sources and Witness Protection' 'safe Hands Process']

Case Brief

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Procedural Posture

Civil Proceedings Seeking Damages, Equitable Compensation and Judicial Review Arising From Alleged Police Misconduct in Dealings With the Plaintiff as a Human Source / Interlocutory Notice of Motion to Vary a Non Publication Order and Obtain Limited Release From the Harman Undertaking

Legal Issues

  1. 1 ['Whether Order 9 made by Lindsay J on 19 January 2021 should be varied to permit the plaintiff to disclose specified material to the Attorney-General of NSW, the NSW Minister for Police and the Law Enforcement Conduct Commission.' 'Whether the plaintiff should be released to a limited extent from the implied Harman undertaking in respect of material obtained in the proceedings, including documents produced by the Australian Federal Police under subpoena.' "Whether special or unusual circumstances, public interest considerations and absence of prejudice justified disclosure notwithstanding the defendants' concerns about sensitivity, safety and alleged improper pressure."]

Ratio Decidendi

The Court held that the circumstances were sufficiently special or unusual to justify varying the non-publication order and releasing the plaintiff from the Harman undertaking to the limited extent sought. The relevant material was largely brought into existence to protect the plaintiff's interests, the non-publication order had been sought for his safety and benefit, the AFP and AFP Officer A did not object and no identifiable prejudice to them or NSWPF Officer B was shown. The proposed recipients were capable of maintaining confidentiality, the safe hands process addressed confidentiality concerns, disclosure to the LECC could serve a public interest in investigation, and disclosure to...

Court Disposition

Order 4 was granted; the plaintiff was permitted limited disclosure of specified material to specified public authorities, and the defendants were ordered to pay the plaintiff's costs of and incidental to the notice of motion.

Orders

  • ['Notwithstanding Order 9 made by Lindsay J on 19 January 2021, the Plaintiff is permitted to disclose the specified material to the Attorney-General of NSW and his staff, the NSW Minister for Police and his staff, and the Law Enforcement Conduct Commission for the purpose of seeking redress for the wrongs alleged...