AB v D1 [2008] VSC 371 (22 September 2008)

Last Updated: 22 September 2008

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 8369 of 2008

AB	Plaintiff
v
D1	Defendant

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JUDGE:	Kyrou J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 September 2008
DATE OF JUDGMENT:	22 September 2008
CASE MAY BE CITED AS:	AB v D1
MEDIUM NEUTRAL CITATION:	[2008] VSC 371

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Practice and procedure – suppression order – application by proposed plaintiff to use pseudonyms rather than names of plaintiff and defendant – allegations of sexual assault – whether circumstances justify use of pseudonyms – Supreme Court Act 1986 (Vic), ss 18 and 19.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Harper	Rennick Briggs
No appearance for the Defendant

HIS HONOUR:

1 This is an ex parte application by a proposed plaintiff seeking an order enabling her to commence and continue a proceeding for damages for personal injury arising out of alleged sexual and physical assaults by her step-father, using pseudonyms instead of her name and the name of the proposed defendant. The proposed plaintiff also seeks orders prohibiting publication of anything that would identify the proposed parties. In this judgment, I will refer to the proposed plaintiff as “plaintiff” and the proposed defendant as “defendant”.

2 The application is supported by an affidavit sworn by the plaintiff on 3 September 2008 and an affidavit sworn by her solicitor on 3 September 2008. In her affidavit, the plaintiff provides details of the alleged assaults between 1978, when the plaintiff was 13 years old, and 2005. She deposes that as a result of the sexual abuse, she gave birth to a son in 1986, whom she gave up for adoption. The plaintiff is now married with five children. In 2006, she located the son she gave up for adoption and he now works in her husband’s business.

3 The plaintiff deposes in her affidavit that she has reported the alleged assaults to the police, that the police are investigating the matter, and that as part of their investigations, the police arranged for the defendant to undergo DNA testing.

4 In her affidavit, the plaintiff deposes that she has lived her whole life in terror of the defendant. She states that she suffers from psychiatric and/or psychological conditions including post-traumatic stress disorder and chronic depression. She states that she has contemplated suicide on many occasions and is receiving psychiatric treatment. She gives details of the adverse consequences to herself and her family if the identities of the parties to the proposed proceeding are disclosed in the proposed proceeding. The plaintiff and defendant have a common surname and are members of a particular ethnic community in Victoria. The plaintiff states that she is concerned that she will not be able to mentally cope with any publicity that might result from the proposed proceeding if she were identified in that proceeding.

5 The affidavit of the plaintiff’s solicitor exhibits DNA results which strongly support the proposition that the defendant is the biological father of the son that the plaintiff gave up for adoption. The affidavit also exhibits medical reports from a consultant psychiatrist, a medico-legal psychiatric expert and a psychologist. These reports give details of the plaintiff’s mental illnesses. The report of the medico-legal psychiatric expert supports the plaintiff’s contention that there is a significant risk that her mental health may deteriorate if she were identified in the proposed proceeding. The report also states that identification of the plaintiff will inhibit or compromise her ability to commence or continue the proposed proceeding. The affidavit also exhibits a proposed statement of claim.

6 Sections 18 and 19 of the Supreme Court Act 1986 (Vic) empower the Court to make an order prohibiting the publication of a report of the whole or any part of a proceeding or any information derived from a proceeding if, in its opinion, it is necessary to do so in order not to prejudice the administration of justice. These provisions have previously been considered in a number of cases similar to the present, including ANN v ABC (No 1) [2006] VSC 348 and ABC v D1; Ex Parte The Herald & Weekly Times Ltd [2007] VSC 480.

7 In ABC v D1, Forrest J helpfully discusses the relevant principles. His Honour states that in cases involving sexual assaults, courts have regularly made pseudonym-type orders.[1] He distilled from the authorities the following principles that are relevant to such cases:

65. First, that the principal rule is that judicial hearings should take place in open court: publicly and in open view, with no restriction on reporting. This is a fundamental precept underpinning the administration of justice.
66. Second, that in certain circumstances the administration of justice requires a qualification of the general rule. There will be circumstances where modifications of the general rule are necessarily made to ensure that the administration of justice is not frustrated. These exceptions are many and varied and cannot be prescriptively identified.
67. Third, that the test to be applied by the court in making a pseudonym order is, to use the words of the statute, whether it is necessary to do so in order not to prejudice the administration of justice.
68. Fourth, that a court, in determining whether to make a pseudonym order, is entitled to take into account the individual considerations affecting the person seeking the order and balance those against the principal rule of open justice in determining whether the administration of justice warrants the making of the order. Relevant to these individual considerations is whether there is a real risk of the party or witness suffering psychological harm as a result of publication of his or her name or the names of other parties. Also relevant is the real risk of a party not proceeding with an action in the event that he or she or another person is identified.
69. Fifth, that in certain circumstances, particularly those involving sexual assaults, it may be appropriate not only to suppress the name of the plaintiff but also to suppress the name of the defendant or defendants.
70. Sixth, that in determining whether to make such an order, a court is entitled to take into account the fact that there will still be a reporting of the proceeding and that the hearing itself will be conducted in open court, subject to the restrictions imposed by the pseudonym order.
71. Seventh, in determining whether it is necessary to make such an order, usually the proofs must be cogent and will not be satisfied by mere belief on the part of a party that the order is necessary. However, in certain cases a court can, in a practical sense, act on its own experience and draw appropriate inferences.[2]

8 Having regard to the above principles, the affidavits that have been filed and the medical reports, the DNA results and the proposed statement of claim that are exhibited to the affidavit of the plaintiff’s solicitor, I am satisfied that public knowledge of the identity of the plaintiff would prejudice the administration of justice because there is a significant risk that it would exacerbate the conditions affecting the plaintiff’s mental health and deter her from commencing the proposed proceeding. I am also satisfied that there is a significant risk that identification of the defendant will enable the plaintiff to be identified. Accordingly, I will make the orders set out below. As these orders have been obtained ex parte, they will be expressed to have effect subject to any contrary order that may be made. This will enable the defendant to seek a variation of the orders should he be so advised.

9 I make the following orders:

(1) The proposed Plaintiff is given leave to commence the proposed proceeding referred to in the affidavit of Michael Francis Suttor Glen sworn 3 September 2008 and filed in support of this application, such leave being limited as follows:

(a) The proposed Plaintiff is not required to be identified by her true name but shall instead be referred to in the writ and the statement of claim filed in the proceeding by the pseudonym “AB”;

(b) The proposed Defendant is not required to be identified by his true name but shall instead be referred to in the writ and the statement of claim filed in the proceeding by the pseudonym “D1”;

(c) The proposed Plaintiff is not required to comply with the requirements of Rule 5.07(1)(a) and (b) of Chapter 1 of the Rules of this Honourable Court.

(2) All documents filed subsequently in the proceeding shall identify the proposed Plaintiff by the reference as set out in 1(a) above, save for the jurat of any affidavit required to be sworn by the proposed Plaintiff, and shall identify the proposed Defendant by the reference as set out in 1(b) above, save for the jurat of any affidavit required to be sworn by the proposed Defendant.

(3) The proposed Plaintiff’s solicitors shall serve upon the proposed Defendant at the time of service of the writ:

(a) a sealed copy of this Order as authenticated;

(b) written notice of the full name and address of the Plaintiff and the Defendant.

(4) Publication is prohibited of any report of:

(a) The hearing of this application;

(b) The contents of any affidavit in support of, and the orders made in, this application;

(c) The writ, statement of claim or any subsequent document to the proposed proceeding or any information derived therefrom;

(d) The hearing of any interlocutory process in the proposed proceeding;

to the extent only that publication might tend to identify any of the parties to the proposed proceeding.

(5) The originating motion and affidavits upon which this application is based and the exhibits to the affidavits are to be placed on the Court file in a sealed envelope only to be opened on order of a Judge.

(6) Paragraphs numbered 2 to 5 of this Order shall have effect unless an order is made to the contrary.

(7) Costs of this application be reserved.

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[1] ABC v D1; Ex Parte The Herald & Weekly Times Ltd [2007] VSC 480, [44].

[2] ABC v D1; Ex Parte The Herald & Weekly Times Ltd [2007] VSC 480.