[2026] SASC 33

Applicants: ANTHONY LANE, ROBERT ALEXANDER KING, MAXWELL STANLEY JOHN GASTON, SAM PETER CARTER AND BLAKE MICHAEL CARDY Counsel: MR T TOBIN SC WITH MR P HAMILTON - Solicitor: KEFFORD FERGUSON Respondent: THE STATE OF SOUTH AUSTRALIA Counsel: MR T GOLDING KC WITH MR T SIMPSON - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 25/11/2025 File No/s: CIV-25-014077 B SUPREME COURT OF SOUTH AUSTRALIA (Civil: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. LANE & ORS v THE STATE OF SA [2026] SASC 33 Reasons for Decision of the Honourable Justice Kimber 23 March 2026 PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS CRIMINAL LAW - PROCEDURE - MISCELLANEOUS POWERS OF COURTS AND JUDGES - SUPPRESSION ORDERS This is an interlocutory application by the respondent in the overall proceeding seeking suppression from publication of various matters set out in a Statement of Claim filed by the five applicants (the applicants) to prevent prejudice to the proper administration of justice. The respondent submits that what is sought to be suppressed will diminish the risk of future criminal proceedings being tainted by publication of the names or descriptions of alleged offenders or publication of what they are alleged to have done, such details appear in the Statement of Claim. The applicants do not oppose suppression of the names, nicknames and descriptions of alleged offenders but submit that it has not been established that the orders sought are necessary to prevent prejudice to the proper administration of justice. The applicants submit that, pursuant to the Uniform Civil Rules 2020 (SA) r 24.5, they intend to apply for an order setting out a process for persons to opt out as represented parties, and such an order will be frustrated if certain particulars of the alleged abuse cannot be publicised. The applicants also submit that it is improbable that as a result of publicity, any potential witness in any criminal proceeding might have their memory contaminated or might fabricate a memory and thereby taint any future criminal proceeding. Held: 1. To prevent prejudice to the proper administration of justice a suppression order should be made to suppress from publication the names, nicknames, physical descriptions and anything else which might tend to identify the alleged offenders, staff members or alleged abusers. -- 1 of 10 -- 2. To prevent prejudice to the proper administration of justice there should be no publication of the details of the abuse alleged, other than it was sexual and non-sexual and the span of years during which abuse is alleged to have occurred. 3. In the result, pursuant to s 69A of the Evidence Act 1929 (SA), a suppression order is made preventing publication of: a. the names, nicknames, physical descriptions and anything else which might tend to identify alleged offenders, staff members or alleged abusers; b. the details of the abuse alleged, other than that it was sexual and non-sexual and the span of years during which abuse is alleged to have occurred. Evidence Act 1929 (SA) s 69A; Uniform Civil Rules 2020 (SA) ch 3 pt 4, r 24.5; Supreme Court Act 1935 (SA) s 131; Civil Liability Act 1936 (SA) pt 7A, referred to. Channel Nine SA Pty Ltd v Police (SA) (No 2) (2014) 121 SASR 87, applied. -- 2 of 10 -- LANE & ORS v THE STATE OF SA [2026] SASC 33 Civil: Interlocutory Application KIMBER J. 1 This is an interlocutory application (FDN 3 or the interlocutory application) seeking suppression from publication of various matters set out in a Statement of Claim (FDN 1 or the Statement of Claim) filed by the five applicants (the applicants). The respondent to the Statement of Claim is the State of South Australia and is the applicant in the interlocutory application (the respondent). 2 The respondent seeks the suppression order pursuant to s 69A(1)(a) of the Evidence Act 1929 (SA) (the Act) to prevent prejudice to the proper administration of justice. The applicants, in effect, do not oppose an aspect of the order sought by the respondent but oppose other aspects. 3 Relevantly, on 25 November 2025, I made the following orders subject to further consideration of the material and submissions: 2. A suppression order is made preventing publication of: a. the names, nicknames or physical description or anything tending to identify the alleged offenders, staff members or abusers; b. the alleged circumstances of the abuse; and c. any references to facilities aside from Magill Training Centre in connection with the within proceedings. 3. A member of the public may only inspect or copy the Claim (FDN 1) as filed with the permission of the Court pursuant to s 131(2) of the Supreme Court Act 1935. Background 4 The Statement of Claim was filed on 20 November 2025. To outline the nature of what is alleged in the Statement of Claim, it is sufficient to set out the following from the Introduction to that claim. From 1 January 1970 to 31 December 2015 (‘the period’), the Respondent relevantly owned and operated three youth detention centres in South Australia, referred in this Statement of Claim as Cavan, Enfield and Magill. The applicants and certain of the group members were detained at one or more of the youth detention centres during the period. While detained at one or more of the youth detention centres, and while under the age of 18, the Applicants and certain of the group members suffered sexual abuse, serious physical abuse and/or psychological abuse related to sexual abuse or serious physical abuse, causing them, and certain members of their families, to suffer injury, loss and damage. The causes of action relied upon are: -- 3 of 10 -- [2026] SASC 33 Kimber J 2 A: assault; B: battery; C: false imprisonment; D: breach of statutory duty under Part 7A of the Civil Liability Act 1936 (SA); and/or E: negligence. 5 The individuals alleged to have committed the abuse alleged in the Statement of Claim are identified by Christian name, and/or surname and/or nickname. 6 The Statement of Claim sets out that the applicants bring the proceeding not only in their own right but also as a representative proceeding pursuant to Chapter 3, Part 4 of the Uniform Civil Rules 2020 (SA). The respondent does not concede that the proceeding should be characterised as a representative proceeding and does not discount making an application at some later time seeking the Court declare that the proceeding should not be so characterised. The affidavits 7 In support of the application, the respondent relied upon the affidavit of Detective Inspector Fitzpatrick made 21 November 2025. There was no application by the applicants to cross-examine Detective Inspector Fitzpatrick. 8 Detective Inspector Fitzpatrick sets out that alleged criminal activity at what can be referred to as the Magill Training Centre (MTC) is the subject of a criminal investigation known as Task Force Libero (the task force). The MTC was a detention facility for youths which operated for many years under more than one name. The primary scope of the task force includes, but is not limited to, alleged criminal offending by individuals between 1990 and 2011 at the MTC but has also encompassed other detention centres and care facilities. I infer that those other centres or facilities include the other facilities mentioned in the Statement of Claim (i.e. – Cavan and Enfield). 9 The task force commenced in November 2023. Detective Inspector Fitzpatrick says that given the vulnerability and disadvantage of alleged victims and witnesses, the number of such people, the historical nature of the investigation and the volume of records, the investigation is taking significant time. Detective Inspector Fitzpatrick says that there may be several hundred possible victims and witnesses. He says that multiple suspects have been identified and alleged victims have been identified by name, nickname and either full or partial description. I pause to observe that it is not suggested that any arrests have been made. 10 Detective Inspector Fitzpatrick says the following about the Statement of Claim: 22. The statement of claim identified persons (by the name or nickname) and descriptions of persons known to Task Force Libero, the publication or -- 4 of 10 -- [2026] SASC 33 Kimber J 3 dissemination of which may significantly prejudice ongoing criminal investigations. Publication of the names, nicknames or descriptions of staff members contained in the Statement of Claim may lead to witnesses or victims who are yet to be interviewed, being exposed to information so as to risk misidentification, confusion regarding similar appearances or other conflation of their evidence. The publication of persons and descriptions of persons in the statement of claim will significantly contaminate the identification processed yet to be conducted with victims and witnesses and with those witnesses and victims yet to be identified. 23. The publication or dissemination of the circumstances of the alleged abuse contained in the statement of claim would contaminate esoteric knowledge held by other cooperating persons and prevent police from obtaining direct versions from these individuals. The publication would not allow police to exhaust a victim’s memory prior to any material being disclosed that might contaminate their memory. 24. The publication or circulation of material related to offending as described in the statement of claim would at this time significantly place ongoing investigations and prosecutions at risk. 11 Detective Inspector Fitzpatrick further says: 25. Identification of a staff member, whether alleged to have offended or not, would place them at risk of serious physical harm and/or death. Identification is published would allow others who may have been victims and not know the identity of the alleged offender to identify and locate for the purposes vindictive physical harm, threats or blackmail. 12 In support of their position, the applicants rely upon the affidavit of Ms Elizabeth Kefford made on 24 November 2025. In short, the affidavit of Ms Kefford sets out that the existence of a police investigation into the MTC is in the public domain; that abuse of children in care was the subject of considerable reference in the Children in State Care Commission of Inquiry presented to Parliament in March 2008, and is referred to in media publicity and on the internet. 13 Ms Kefford says that given that this is a representative proceeding, publicity is essential for the following reasons: a. we intend to seek that this proceeding operate on an opt-out basis. In an opt-out group proceeding, persons who fall within the group member definition in the [Statement of Claim] will be group members unless they elect to opt out. Publicity is therefore necessary so group members and potential group members may: i. be properly compensated; or ii. opt out of the group proceeding; and b. group members or potential group members need to know whether they meet the definition of a “group member” so as to be able to register and seek compensation. 14 In support of the position of the applicants that the investigation by the task force would not be prejudiced by the interlocutory application being refused (other than in a limited way), Ms Kefford says: -- 5 of 10 -- [2026] SASC 33 Kimber J 4 37. None of the Applicants have been contacted by South Australia Police, interviewed, or otherwise involved in the Taskforce’s criminal investigation. To my knowledge, none of the Applicants are complainants, witnesses, suspects, or persons of interest in the matters being investigated by the Taskforce. 38. Whilst the Applicants consent to suppression of information capable of identifying alleged offenders as referred to in the SOC, and to related pseudonym orders, the Fitzpatrick affidavit does not disclose any prejudice to the proper administration of justice arising from publication of the remaining non-identifying content. 39. There is no prejudice to the proper administration of justice in the Applicants detailing their own allegations of abuse in the SOC, nor in the SOC referring to facilities aside from Magill, namely Cavan and Enfield. 40. Accordingly, while I am instructed that the Applicants consent to the use of pseudonyms for alleged offenders whose names or nicknames are referred to, and to the suppression of any information that tends to identify those individuals, the Applicants otherwise oppose the proposed suppression orders. Section 69A of the Act 15 As mentioned, the application is made pursuant to s 69A(1)(a) of the Act which provides: 69A—Suppression orders (1) Where a court is satisfied that a suppression order should be made— (a) to prevent prejudice to the proper administration of justice; or (b) to prevent undue hardship— (i) to an alleged victim of crime; or (ii) to a witness or potential witness in civil or criminal proceedings who is not a party to those proceedings; or (iii) to a child, the court may, subject to this section, make such an order. 16 In Channel Nine SA Pty Ltd v Police (SA) (No 2) the Court held:1 42. The subject matter of s 69A of the Evidence Act is not the underlying dispute between the parties: rather it is communication to the public about judicial proceedings. This is quintessentially a public matter. By making a suppression order, a court does not determine or declare pre-existing rights of the parties to the application. There is no lis between persons who make submissions to the court whether a suppression order should be made. The criteria which govern the court’s exercise of discretion whether to make a suppression order are public interest criteria. The court is required to weigh the competing public interests: open justice against prejudice to the proper administration of justice or avoiding collateral hardship to a member of the public in 1 (2014) 121 SASR 87, 99 [42]–[44]. -- 6 of 10 -- [2026] SASC 33 Kimber J 5 determining whether to make a suppression order. The private interests of the parties to the application are irrelevant to the court’s determination. 43. The public interest involved in making a suppression order is further reflected in the fact that s 69A(5) gives standing to any representative of the mass media – a newspaper, radio or television station – to make submissions on the question whether a suppression order should be made. In addition, courts are required to maintain a register, open for inspection by members of the public, of all suppression orders made and the Attorney-General is required to prepare an annual report to Parliament concerning all suppression orders made and the reasons for them. 44. The issue whether a suppression order should be made does not necessarily arise between the parties at all. Commonly the plaintiff and defendant will have no personal interest whether a suppression order is made. Commonly, a witness or other member of the public will apply for a suppression order and the only submissions on the question will be made by that member of the public and the media. The position of the respondent 17 The respondent accepts that the fact of an investigation into the MTC has been the subject of publicity as has the fact of alleged abuse at institutions where children were housed. Nevertheless, relying upon the affidavit of Detective Inspector Fitzpatrick, the respondent submits that what is sought to be protected is the risk of future criminal proceedings being tainted by information which might identify alleged perpetrators and/or the way in which they are alleged to have offended. The respondent submits that the proper administration of justice will be prejudiced if there is publication of the names or descriptions of alleged offenders or publication of what they are alleged to have done when abusing any applicant. The respondent submits that such details appear in the Statement of Claim. It is submitted, in effect, that the proper administration of justice is promoted by potential witnesses who wish to co-operate with the police doing so relying only upon their own memory; without that memory being contaminated by publicity; and without the credibility of reliability of that witness being open to attack because of publicity about the Statement of Claim having pre-dated any statement(s) given to the police. It is submitted that contamination, or the risk of contamination, might undermine the force of any evidence that assists in identifying offenders and may therefore undermine the strength of such evidence. 18 The respondent submits that if it is necessary for there to be publicity about the existence of proceedings, that can be achieved without the publication of certain detail from the Statement of Claim. It is submitted, for example, that the orders sought by the respondent would not prevent publicity about the proceeding existing and that the proceeding relates to the abuse of children in detention and/or state care. The position of the applicants 19 The applicants submit that it has not been established that the orders sought are necessary to prevent prejudice to the proper administration of justice. -- 7 of 10 -- [2026] SASC 33 Kimber J 6 20 Consistent with the affidavit of Ms Kefford, the applicants do not oppose suppression of the names, nicknames and descriptions of alleged offenders. However, the applicants submit that the Statement of Claim does not contain significant detail about what alleged offenders are said to have done. The applicants submit that there is already substantial information in the public domain, including about alleged abuse and the nature of that abuse. The applicants submit further that the weight to be afforded to the affidavit of Detective Inspector Fitzpatrick is diminished as it is general and provides no estimate of when the investigation may be completed or substantially completed. 21 The applicants submit also that its position that the proceeding is a representative proceeding is a considered and justified one, which will be maintained. As set out in the affidavit of Ms Kefford, the applicants submit that, pursuant to the Uniform Civil Rules 2020 (SA) (UCR) r 24.5, they intend to apply for an order setting out a process for persons to opt out as represented parties. The applicant submits that such an order will be frustrated if certain particulars of the alleged abuse, such as what, and where, it was alleged to have occurred cannot be publicised. The applicants accept that an order contemplated by UCR r 24.5 may not need to be made for about 12 months, perhaps longer, but submit that there is significant work to be done to progress the proceeding before that time. The applicants submit that such progress will be frustrated by the orders sought by the respondent. 22 The applicants also submit that, in the circumstances, it is improbable that as a result of publicity, any potential witness in any criminal proceeding might have their memory contaminated or might fabricate a memory. Consideration 23 I am satisfied that a suppression order should be made to prevent prejudice to the proper administration of justice. However, I am not satisfied that it should be as broad as that sought by the respondent. 24 I am satisfied that the order should suppress from publication the names, nicknames and anything which might tend to identify the alleged offenders referred to in the Statement of Claim. Before me, such an order was not seriously opposed. 25 The real issue is the balance of what is sought by the respondent. 26 The affidavit of Detective Inspector Fitzpatrick establishes that many potential victims are yet to be spoken to by police. I am satisfied that it may prejudice the proper administration of justice if those potential victims are spoken to at a time after details of the allegations are publicised. Ideally, potential victims would provide statements to police in circumstances which minimise the risk of those statements being contaminated by publicity about what has been said by other alleged victims and in circumstances which minimise the risk of the credibility and reliability of potential victims being undermined by suggestions -- 8 of 10 -- [2026] SASC 33 Kimber J 7 that their account is not credible or is unreliable as it has been contaminated or invented due to publicity. While aspects of what is in the Statement of Claim are general in nature, thereby diminishing the risks of any contamination or fabrication, that is not so with respect to every aspect of what is alleged within the Statement of Claim. For example, there is detail as to where within a facility abuse took place; when it occurred; specifics as to the abuse and how it was committed; and what alleged perpetrators said. 27 The above said, I am not satisfied that no publication of the nature of the abuse alleged in the Statement of Claim is necessary to prevent prejudice to the proper administration of justice. I am not satisfied that to prevent prejudice to the proper administration of justice there should be no publication of the fact that the applicants allege that the abuse to which they were subjected was both sexual and non-sexual. I am not satisfied that publication in such general terms would prejudice the proper administration of justice. Such publication, even in conjunction with what will be permitted immediately below, would be so general as to not give rise to the necessary prejudice. 28 I am also not satisfied that there should be no publication of the names, and/or locations, of the three detention centres or care facilities at which the applicants allege they were abused or the years in which applicants allege that the abuse occurred. In circumstances in which there will be suppression of the detail of the abuse alleged by the applicants (other than it was sexual and non-sexual) and there will be suppression of the names, nicknames and anything else which might identify an alleged offender, I am not satisfied that publication of the names and/or locations of the detention centres, or care facilities, would prejudice the proper administration of justice. I am not satisfied that such publication would prejudice, in any material way, the police investigation or would prejudice, in any material way, any hypothetical criminal proceeding. I am also not satisfied that such publication would give rise to a material risk of threats or other harm to alleged offenders, as asserted by Detective Inspector Fitzpatrick in his affidavit. Orders 29 In the circumstances I make the following orders: 1. The orders made on 25 November 2025 (FDN 10) are amended. 2. A suppression order is made preventing publication of: a. the names, nicknames, physical descriptions and anything else which might tend to identify alleged offenders, staff members or alleged abusers; b. the details of the abuse alleged, other than that it was sexual and non-sexual and the span of years during which abuse is alleged to have occurred. -- 9 of 10 -- [2026] SASC 33 Kimber J 8 3. A member of the public may only inspect or copy the Statement of Claim (FDN 1) as filed or any other document filed in the action other than the documents identified in s 131(1) of the Supreme Court Act 1935 (SA) with the permission of the Court pursuant to s 131(2) of the Supreme Court Act 1935 (SA). 4. The parties have liberty to apply to vary the above orders on 48 hours-notice directly to chambers. A further observation 30 Plainly enough, the orders that I am satisfied are appropriate are based upon the evidence before me and the submissions about that evidence. 31 Further, what is appropriate today may not be appropriate at a different time based upon different evidence. Among other things, what is known about the state of the investigation, including, but not limited to: the number of witnesses who have spoken to police and committed themselves to a version of events; whether there have been arrests, and if so, how many; and evidence about when the investigation may be completed, wholly or substantially, will change as time passes. Also relevant in the future may be the need for any order pursuant to UCR r 24.5 and how pressing that need. 32 The affidavit of Detective Inspector Fitzpatrick establishes that the work of the task force is complex and resource intensive. I am sure that the orders I have made will not be seen as an encouragement to the task force to decelerate its investigation on the basis that these proceedings may compromise the commencement of any criminal proceedings. 33 At least, given the position of the applicants, the task force should proceed on the basis that it could be called upon at any time to justify the pace at which the investigation is progressing; the resources being allocated to that investigation; to establish the stage the investigation has reached; to establish what, if any, arrests have been made; and to otherwise provide evidence in support of the continuation of any suppression order. -- 10 of 10 --