ABB (by her litigation guardian ABC) v D1

[2013] VSC 81

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PRACTICE COURT

No. 0627 of 2013

ABB (By her litigation guardian ABC)	Plaintiff
v
D1 and D2	Defendants

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JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 March 2013
DATE OF JUDGMENT:	1 March 2013
MEDIUM NEUTRAL CITATION:	[2013] VSC 81

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Practice and Procedure – suppression order – application by plaintiff to suppress publication of names in proposed proceeding – exceptional circumstances – suppression orders made

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms A Magee	Shine Lawyers
No appearance for the Defendants

HER HONOUR:

1. I have before me an ex parte application on behalf of the plaintiff, by her litigation guardian, seeking orders which would enable her to conduct this proceeding against the first defendant, a scout leader, and the second defendant, an organisation connected with the first defendant.

1. In substance, what she seeks is an order that she be identified for all purposes of this application and the proceeding simply as “ABB”, rather than by reference to her name or anything which would tend to suggest her identity.  Given the relationship between the plaintiff and her litigation guardian, they seek to use the initials “ABC” to refer to the litigation guardian.

1. The plaintiff alleges that she was the victim of various acts of physical, sexual and psychological abuse by the first defendant, over a three year period.  The abuse is said to have occurred at or around a specific scout hall which she attended, at various scout events, and at events organised by other organisations but which took place at scout properties.  As a result of the abuse, the plaintiff claims damages for shock, personal injury, and other loss and damage.    

1. The plaintiff relies upon the affidavit of her solicitor, the exhibits to which include a psychiatric report prepared by Professor Lorraine Dennerstein, dated 5 December 2012.  The report sets out in some detail the plaintiff’s background, including her pre-existing disabilities prior to the alleged abuse, as well as her current psychiatric state.  Professor Dennerstein expresses the opinion that the failure of an application for a suppression order would be “very damaging” for the plaintiff, and that for her identity to be revealed in court would likely “worsen her psychiatric disorders, possibly with tragic consequences.”

1. Professor Dennerstein is also concerned that the identification of the defendants may have an adverse affect on the plaintiff’s mental health, as the plaintiff fears that this might lead others to identify her as a person who has been sexually abused.

1. Both the plaintiff and litigation guardian are also concerned about the potential effect on the plaintiff’s family, and the reaction by some family and community members, if the alleged sexual abuse became public knowledge.  

1. The power of the court to make the orders which are sought is clear enough. It derives in part from s 18(1)(c) of the Supreme Court Act and in part from the inherent jurisdiction of the court to conduct its own proceedings in the way best calculated to advance the interests of justice.  The relevant principles have been discussed in cases such as PW & MN v State of Victoria, a decision of Beach J dated 23 December 1993, BK v ADB [2003] VSC 129, a decision of Nettle J, and the decision of Hargrave J in AB v Attorney-General [2005] VSC 180.

1. Having regard to the contents of the supporting affidavit, in particular the draft statement of claim (which is exhibited to the affidavit) and the report of Professor Dennerstein, I am satisfied that public knowledge of the identity of the plaintiff, her litigation guardian and the defendants would be likely to defeat the paramount object of the court, of doing justice according to law, because the plaintiff would be deterred from bringing and continuing this proceeding.  Further, her psychiatric condition is likely to be exacerbated by the disclosure of her identity.

1. I have not heard from the defendants.  It may be that they will take the view that the parties’ identities should be disclosed.  I think that is unlikely to be their attitude, but I must be mindful of that possibility.  Accordingly, my orders will be framed so as to have effect unless or until an order is made to the contrary. 

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