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:

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.

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.

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.

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.”

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.

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] VSC 81
Decision Date: 1 March 2013

CaseChat Overview and Summary

The case involved a plaintiff, represented by her litigation guardian, who applied to suppress the publication of their names in the proposed proceeding. The parties involved were ABB, represented by her litigation guardian ABC, and D1. The nature of the dispute was the application for a suppression order to prevent the disclosure of the plaintiff's identity in the proceedings. This matter was heard in the Federal Circuit and Family Court of Australia.

The legal issues before the court included whether exceptional circumstances existed to justify the suppression of the plaintiff's identity. The court had to consider the principles set out in the relevant legislation, including the balance between the public interest in open justice and the need to protect the privacy and safety of the plaintiff. The court also had to assess the potential harm that could arise from the disclosure of the plaintiff's identity against the benefits of transparency in the legal process.

The court found that exceptional circumstances did exist, warranting the suppression of the plaintiff's identity. The evidence presented demonstrated that the plaintiff faced significant risks of harm if her identity was disclosed, including the potential for physical danger and emotional distress. The court weighed these risks against the public interest in open justice and determined that the latter could be adequately served without compromising the plaintiff's safety. The judge concluded that the suppression order was necessary to protect the plaintiff's well-being and to uphold the principles of justice in a manner that balanced the competing interests at stake.

As a result of the court's decision, suppression orders were made, preventing the publication of the plaintiff's names in the proceedings. The orders were intended to safeguard the plaintiff's identity and privacy while the case proceeded, ensuring that the necessary protections were in place to prevent any potential harm.

Orders