Background
The Plaintiff initiated proceedings by summons on 17 October 2025, alleging that the Defendants engaged in a fraud scheme. The Second Defendant, using a bogus name and acting in league with the First Defendant, allegedly defrauded the Plaintiff into paying over AUD 1.2 million into an account in the First Defendant’s name, claiming the funds would be invested in shares to be sold shortly thereafter at massive profit. The Plaintiff received neither shares nor repayment. The case has been conducted in open court for eight months with numerous directions hearings and interlocutory applications. On 17 June 2026, Kunc J made declarations that the First Defendant holds AUD 1,109,952.31 and a Jaguar motor car on constructive trust for the Plaintiff, and awarded damages against the Second Defendant.
On 18 June 2026, the Defendants filed a motion seeking suppression orders under the Court Suppression and Non-publication Orders Act 2010 (NSW), requesting that the court file be closed to third parties and that no publication concerning any party be permitted. The Defendants’ stated concern was that unidentified third parties who had previously threatened them might wish them harm if the proceedings became publicly known. The motion came before Hammerschlag CJ in Eq on 23, 24, and 25 June 2026.
The Court’s Holding
The court dismissed the Defendants’ motion entirely, finding it entirely without merit. The court held that the Defendants had not established that suppression orders were “necessary” under section 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW). The fundamental obstacle to the application was that the presumption of open justice could not be displaced: the proceedings have been conducted in open court for eight months, the alleged threatening third parties remain unidentified, and there is no evidence that these persons are unaware of the proceedings or that further publication would enhance the probability of threats being made or carried out.
The court discharged interim suppression orders made by Lindsay J on 18 June 2026 that prohibited access to the court file and any publication concerning the parties. However, the court accepted an undertaking from Nationwide News Pty Ltd not to mention the Plaintiff’s name in any publication, which would prevent the full composition of the proceedings from being disclosed in newspaper articles. This practical solution was deemed sufficient to address the legitimate concerns raised.
The court also addressed serious procedural defects in the Defendants’ evidence, rejecting affidavits that bore false jurats claiming compliance with electronic witnessing requirements under section 14G of the Electronic Transactions Act 2000 (NSW), when in fact the affidavits were signed electronically by the deponent—a practice impermissible for court documents. The court made an order requiring the Defendants’ solicitor to provide his clients with a transcript recording his undertaking not to charge them fees for the reinstatement motion and court appearances.
Key Takeaways
- The presumption of open justice is powerful: suppression orders require clear necessity established on admissible evidence, not mere subjective preference for privacy or fear of unidentified third parties.
- Eight months of uninterrupted open court proceedings, coupled with failure to prove that alleged threatening parties are unaware of the case, defeats suppression applications.
- Practical alternatives—such as media undertakings not to name vulnerable parties—may suffice to address court concerns without resorting to full suppression orders.
- Affidavits in court proceedings must comply with strict formal requirements; electronic signatures by deponents are impermissible, and false jurats misrepresenting the method of execution constitute serious procedural breaches.
Why It Matters
This judgment reinforces the foundational principle in Australian justice that open court proceedings are the norm and suppression is the exceptional remedy. Courts will not suppress proceedings based on vague, generalized threats to unidentified parties, particularly when the case has already been ventilated in open court for months. The decision signals that litigants seeking suppression must produce concrete evidence of necessity, not speculation about hypothetical harm.
The judgment also provides important procedural guidance on affidavit execution in the modern era. Even as courts accommodate electronic witnessing via section 14G of the Electronic Transactions Act, deponents themselves cannot electronically sign court documents—a formality that must be respected. The court’s willingness to reject defective affidavits and require proper compliance, regardless of the solicitor’s seniority, underscores that procedural regularity is not negotiable, and that professional obligations extend to ensuring formal correctness in every document filed with the court.