MOFFATT -v- NORTH METROPOLITAN HEALTH SERVICE [2026] WADC 6 (S)

[2026] WADC 6 (S) [2026] WADC 6 (S) [HC] Page 1 JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA IN CHAMBERS LOCATION : PERTH CITATION : MOFFATT -v- NORTH METROPOLITAN HEALTH SERVICE [2026] WADC 6 (S) CORAM : SEFTON DCJ HEARD : ON THE PAPERS DELIVERED : 28 MAY 2026 FILE NO/S : CIV 292 of 2020 BETWEEN : LISA MOFFATT Plaintiff AND NORTH METROPOLITAN HEALTH SERVICE Defendant Catchwords: Suppression and non-publication orders - Redaction of private personal information of children from reasons for decision - Principle of open justice Legislation: District Court of Western Australia Act 1969 (WA), s 52, s 55 Result: Parts of reasons for decision to be published on eCourts portal to be redacted -- 1 of 9 -- [2026] WADC 6 (S) [2026] WADC 6 (S) [HC] Page 2 Representation: Counsel: Plaintiff : No appearance Defendant : No appearance Solicitors: Plaintiff : Slater and Gordon Lawyers Defendant : Panetta McGrath Lawyers Case(s) referred to in decision(s): Ex parte The Queensland Law Society Incorporated [1984] Qd R 166 Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; (2004) 61 NSWLR 344 McJannett v Daley [No 2] [2012] WASC 386 Re Her Honour Chief Judge Kennedy; Ex parte West Australian Newspapers Limited [2006] WASCA 172 Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221 Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [No 2] [2011] WASC 276 Russell v Russell [1976] HCA 23; (1976) 134 CLR 495 -- 2 of 9 -- [2026] WADC 6 (S) SEFTON DCJ [2026] WADC 6 (S) [HC] Page 3 SEFTON DCJ: 1 Following publication of the court's reasons for decision to the parties and entry of judgment for the plaintiff on 21 January 2026, the proceedings were adjourned. Programming orders were made to facilitate an opportunity for the plaintiff to confirm the costs orders she sought and for the parties to file any supporting evidence and submissions in relation to the question of costs. It was anticipated that those matters might then be determined on the papers without any further hearing. No application was made by either party for non-publication or suppression of any aspects of the reasons for decision at the time judgment was delivered or immediately thereafter.1 2 Subsequently, and prior to publication of the reasons for decision via the court's eCourts portal, the court nevertheless invited the parties to indicate if either sought any form of non-publication or other order in relation to any aspect of the reasons for decision.2 In particular, it drew their attention to certain passages in the reasons concerning matters or events of a personal nature concerning certain children of the plaintiff. 3 The plaintiff subsequently indicated that she did wish to seek such an order. The programming orders were accordingly adjusted to accommodate submissions and affidavit evidence extending to any such order that the plaintiff might seek. In due course supporting affidavits and written submissions were filed by both parties. Costs 4 The primary dispute in relation to costs concerned whether the defendant should be ordered to pay the plaintiff's costs on an indemnity basis and, if not, whether any special costs orders should be made. 5 Prior to determining those questions the court was advised that the parties had resolved the question of costs between them. Consistent with the position agreed between the parties, I will make an order that the defendant pay the plaintiff's costs of the action to be taxed if not agreed. 1 An advance copy of the court's reasons for decision was provided to the parties and their legal representatives shortly prior to judgment being formally delivered. 2 In some jurisdictions an explicit distinction is drawn between non-publication orders and suppression orders. See, for example: Court Suppression and Non-Publication Orders Act 2010 (NSW). -- 3 of 9 -- [2026] WADC 6 (S) SEFTON DCJ [2026] WADC 6 (S) [HC] Page 4 Limited non-publication/suppression order Order sought and position of the parties 6 The plaintiff indicates, in her written submissions, that she seeks a suppression or non-publication order that will prevent publication, via the eCourts portal, of particular paragraphs (or parts of paragraphs) of the reasons for decision. The order sought is specified to be an order that the reasons for decision to be published via the eCourts portal be redacted to remove or mask the content so identified.3 7 The content sought to be removed or redacted is identified in a table within the submissions.4 The content specified relates to matters that are private and personal in nature to certain of the plaintiff's children. 8 The plaintiff's written submissions acknowledge that the reasons for decision, having been delivered, would have been provided to instructors and others with an interest in the proceedings. The submissions also assert that the solicitors for the plaintiff are not aware of such widespread publication by the parties that the order proposed would have no utility.5 9 It is contended on behalf of the plaintiff that:6 If the order is made, persons who have received the unredacted reasons for decision will be prevented, prospectively, from publishing the reasons otherwise than in accordance with the order. All such persons are likely to be ascertainable and could be informed of the order. This contention appears to misapprehend the effect of the order sought. If made, the order sought will only apply to restrict the manner of publication of the reasons for decision on the eCourts portal. It is therefore somewhat unclear as to whether, and, if so, to what extent, the plaintiff might contemplate a non-publication or suppression order in terms broader than the terms of the order foreshadowed on her behalf at the outset of her submissions. 3 Plaintiff's Submissions in Support of Suppression or Non-Publication Order filed 10 February 2026 (Plaintiff's Submissions), par 1. 4 Plaintiff's Submissions, par 3. The plaintiff's solicitors also provided to the court and the defendant a copy of the reasons for decision on which the particular paragraphs or parts of particular paragraphs sought to be removed or redacted were highlighted. 5 Plaintiff's Submissions, par 13. 6 Plaintiff's Submissions, par 13. -- 4 of 9 -- [2026] WADC 6 (S) SEFTON DCJ [2026] WADC 6 (S) [HC] Page 5 10 The defendant does not oppose an order sought by the plaintiff in relation to non-publication of various paragraphs or parts of paragraphs of the reasons for decision via the court's eCourts portal. It, however, opposes any form of broader non-publication or suppression order, in circumstances in which a copy of the reasons for decision, published to the parties, has already been distributed to various persons.7 11 An affidavit was filed by the defendant in support of that contention.8 The affidavit attests to the limited distribution of the reasons for decision to relevant clients of the health law team of the solicitors for the defendant as an email attachment, that it has been shared between executive staff of the defendant; with two members of the independent bar, who practice in this area; an external legal practitioner of a client, and a witness called by the plaintiff.9 Legal principles 12 It is not in dispute that, in the exercise of its civil jurisdiction, the District Court has power to make a non-publication or suppression order, although neither party specifically addressed the source of that power.10 13 In my view, the power arises in the exercise of the civil jurisdiction of the court in one of two ways. The first is as an implied power to the extent it is necessary to regulate its proceedings for the purpose of administering justice.11 Alternatively, it may arise by reason of District Court of Western Australia Act 1969 (WA) s 52 and s 55, by which the District Court is given the same powers as the 7 Defendant's Submissions on Costs and Suppression dated 26 February 2026 (Defendant's Submissions), pars 19 - 23. 8 Affidavit of Gemma Louise McGrath dated 26 February 2026. 9 There was no limitation on such distribution given that no order had been made preventing that course. Nor had the plaintiff, at that stage, foreshadowed seeking any form of non-publication or suppression order in relation to any aspects of the reasons for decision. 10 A limited express power exists in relation to the court record, see: District Court Rules 2005 (WA) O 71 r 3 under which an application may be made to the court for an order that prohibits or restricts access to, or the publication or possession of, or any part of the court record in respect of a case by person or class of persons. In relation to the exercise of criminal jurisdiction see, for example: Criminal Procedure Act 2004 (WA) s 171(4). That provision empowers the court in criminal proceedings, if satisfied that it is in the interests of justice to do so, to make an order prohibiting publication outside the courtroom of the whole of the proceedings, or a part or particular of them specified by the court, and an order that prohibits or restricts the publication outside the courtroom of any matter that is likely to lead members of the public to identify a victim of an offence. 11 Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 [21] (French CJ) (Hogan v Hinch); Ex parte The Queensland Law Society Incorporated [1984] Qd R 166, 170 (McPherson J); John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, 476 (McHugh JA); John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; (2004) 61 NSWLR 344, 356 - 358 (Spigelman CJ). -- 5 of 9 -- [2026] WADC 6 (S) SEFTON DCJ [2026] WADC 6 (S) [HC] Page 6 Supreme Court, in relation to practice and procedure. This arguably extends to the Supreme Court's power to make non-publication or suppression orders in exercise of its inherent jurisdiction. 14 It is unnecessary to resolve that question, which was not the subject of argument. Irrespective of the source of the power, and potentially narrower scope of the power if it arises as an implied power of the court,12 I am satisfied that it is open and appropriate to exercise it in the circumstances of this case. 15 The starting point is the ordinary rule, sometimes described as the principle of open justice, that proceedings of a court should be conducted openly and in public view, not in secret. It is an essential aspect of the character of a court, and its rationale is to maintain confidence in the integrity and independence of the courts.13 The principle is not absolute. It is 'a means to an end, and not an end in itself'.14 16 The public interest underpinning the rule generally, but not always, prevails 'over the adverse personal consequences to litigants and those associated with them that can arise from the public nature of court processes and proceedings'.15 While exceptions are narrowly confined, each alleged infringement must be assessed according to its own facts and merits against the background of the reasons for which the principle exists and any competing public interests.16 In appropriate circumstances, a relevant countervailing public interest is that of protecting the privacy, and the best interests, of a child. That interest is generally recognised, including by a wide range of statutory protections in various contexts.17 17 The obligation of a court to publish reasons for decision is itself an incident of the principle of open justice.18 Any suppression of a judicial decision, in whole or in part, will at least to some degree render the process of justice less open and less transparent.19 12 John Fairfax Publications Pty Ltd v District Court of NSW (356) (Spigelman CJ). 13 Russell v Russell [1976] HCA 23; (1976) 134 CLR 495, 520 (Gibbs J); Hogan v Hinch [33] (French CJ). 14 Hogan v Hinch [20] (French CJ); Re Her Honour Chief Judge Kennedy; Ex parte West Australian Newspapers Limited [2006] WASCA 172 [38] (Steytler P, McLure and Roberts-Smith JJA agreeing); Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221 [50] - [51] (Owen JA) (Re Hogan). 15 Re Hogan [33]. 16 Re Hogan [50] (Owen JA). 17 See, for example: Re Hogan [33], [36] - [37], [41] (McLure P). 18 McJannett v Daley [No 2] [2012] WASC 386 [3] - [4] (Le Miere J). 19 Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [No 2] [2011] WASC 276 [2] (Edelman J). -- 6 of 9 -- [2026] WADC 6 (S) SEFTON DCJ [2026] WADC 6 (S) [HC] Page 7 18 The nature and extent of any form of non-publication or suppression order that may be necessary and appropriate in a particular case may vary, depending on the circumstances of the case. It may, for example, result in excluding the public from proceedings or limiting republication of information or evidence referred to or adduced in the proceedings.20 It may also extend, in appropriate circumstances, to de-identification of the names of parties or others referred to in a decision, such as by referring to them by initials or the use of pseudonyms, or otherwise restricting publication of part or all of the reasons for decision.21 Determination 19 I am satisfied that it is necessary to regulate the court's proceedings for the purpose of administering justice, as well as being in the interests of justice, to exercise my discretion and make an order in substance reflecting the order sought by the plaintiff in her submissions.22 In my view, it is necessary and appropriate that the reasons for decision to be published on the eCourts website be edited to redact the specified paragraphs, or parts of paragraphs, of the reasons identified by the plaintiff. 20 I have formed that view for the following reasons. 21 First, the matters sought to be redacted relate to matters of a private and personal nature concerning certain children of the plaintiff. Most of them are still children or, at most, young adults. I am satisfied that, in view of the nature of the content sought to be redacted, there is a public interest in their privacy being protected in relation to those matters. 22 If those contents are made available to the general public through publication of the full reasons for decision on the eCourts portal, it may result in that information becoming more generally known, including to persons who know or may come to know the individuals concerned. Were that to occur, I am satisfied, given the personal and private nature of the matters concerned, that it is reasonably possible it may adversely impact the individual(s) concerned, as might a sense of apprehension of that occurring, which they may experience. 20 Re Hogan [33] (McLure P). 21 See, for example: Supreme Court of Western Australia Consolidated Practice Directions, Practice Direction 8.2: Publication of Reasons for Decision, 2009. 22 Plaintiff's Submissions, par 1. -- 7 of 9 -- [2026] WADC 6 (S) SEFTON DCJ [2026] WADC 6 (S) [HC] Page 8 23 Secondly, in my view the portions proposed to be redacted are not essential for a reader to appreciate and understand the court's process of reasoning. The judgment is intelligible without the passages. The passages do not concern the core or principal reasons for decision. 24 Thirdly, the information concerns individuals who are not parties to the litigation. 25 Fourthly, the restriction sought is limited in nature. It concerns part or all of 18 paragraphs in a 226-page judgment. 26 Fifthly, there remains significant utility in the order proposed being granted, in circumstances where only a limited number of persons, with a legitimate interest in the reasons, have received a copy of the complete reasons for decision. 27 In my view, subject to certain minor variations to the redactions proposed, the making of an order in substance reflecting the order sought by the plaintiff in par 1 of her submissions will substantially limit any risk of the privacy of the individuals concerned being adversely affected. 28 Even if the plaintiff is to be understood as inviting the court to make an order extending beyond that sought in par 1 of her written submissions, I am not persuaded on the materials before the court that a more extensive form of order is presently necessary in the circumstances of this case. The risk that any of the limited number of persons who have received a full copy of the reasons might publish the reasons to the public or a section of the public appears minimal. Further, while any form of broader order is opposed by the defendant, I anticipate that the parties and their legal representatives would voluntarily take steps to request that any persons to whom they or their legal representatives have provided a copy of the reasons for decision not publish the reasons for decision in an unredacted form. 29 I will, however, grant liberty to apply. Summary of orders 30 I will make orders that: 1. The defendant pay the plaintiff's costs of the action to be taxed if not agreed. -- 8 of 9 -- [2026] WADC 6 (S) SEFTON DCJ [2026] WADC 6 (S) [HC] Page 9 2. Subject to further order, the version of the court's reasons for decision dated 21 January 2026 to be published via the eCourts portal is to be redacted so as to redact part or the whole of [652], [653], [681], [724] - [726], [728] - [731], [746] and [880] - [887] of the reasons for decision in the manner set out in the attachment to these orders. 3. Liberty to apply. I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia. CJ Associate to his Honour Judge Sefton 27 MAY 2026 -- 9 of 9 --