ABC-1 and ABC-2 v Ring and Ring

[2014] VSC 5

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

2013

ABC-1	Proposed first plaintiff
AND
ABC-2	Proposed second plaintiff
ROBERT RING	Proposed first defendant
AND
KEITH CLIFFORD RING	Proposed second defendant

JUDGE:	BELL J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 December 2013
DATE OF JUDGMENT:	24 January 2014
CASE MAY BE CITED AS:	ABC-1 and ABC-2 v Ring and Ring
MEDIUM NEUTRAL CITATION:	[2014] VSC 5

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PRACTICE AND PROCEDURE – proposed proceeding in common law division – damages to be sought for personal injuries suffered by reason of alleged sexual assaults – pre-commencement application by proposed plaintiffs permitting proceeding to be issued in their names by way of pseudonyms – whether a pseudonym order is a suppression order – whether Open Courts Act 2013 (Vic) applied – whether notice had to be given under that Act - circumstances justifying the making of pseudonym order – ‘suppression order ‘, ‘pseudonym order’ - Open Courts Act ss 3, 7, 10, 17,20, Supreme Court Act 1986 (Vic) ss 18 and 19.

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APPEARANCES: For the applicants Counsel Mr D Podger Solicitors Michael Faltermaier
Lawyers

HIS HONOUR:

1. As proposed plaintiffs, ABC-1 and ABC-2 made a pre-commencement application for leave to commence a proceeding in the common law division of the court in the name of those pseudonyms.  I granted the application and these are my reasons for doing so.

1. In the proposed proceeding, the applicants (who are adults) will allege that they were sexually assaulted (as children) by the proposed defendants for which they intend to seek damages.  The alleged circumstances are set out in a draft statement of claim.

1. The applicants will allege that they have suffered psychiatric injury as a result of their treatment by the proposed defendants, including major depressive disorder and post-traumatic stress disorder.  The medical evidence goes into their condition in some detail.

1. The grounds of the application for the pseudonym order are:

·    the applicants are fearful of the publicity associated with instituting legal proceedings

·    there is a stigma attached to the circumstances in which the alleged assaults took place and the resulting injuries

·     not all members of the families of the applicants are aware of the allegations and other family members would be seriously affected by learning that the applicants were (allegedly) victims of sexual assault

·    the applicants are fearful about discrimination against them and their families should knowledge of the assaults and their injuries become generally available

·    disclosure of the identities of the applicants would (on the medical evidence) lead to a deterioration of their medical condition

Each of these grounds is supported by evidence.

1. As stated by Cavanough J in TTT and JJJ v State of Victoria,[1] the question is whether

‘the court is satisfied that [fears] of this kind [are] actually and reasonable held, and that the [fears] might reasonably deter the applicant from proceeding to invoke the jurisdiction of the court…'[2]

I find on the evidence that the applicants’ fears are reasonably held and that there is a real risk of them abandoning their intention to issue a legal proceeding if a pseudonym order is not made.

[1][2013] VSC 162 (25 March 2013).

[2]Ibid [18].

1. The applicants gave notice of the application under s 10(1) of the Open Courts Act 2013 (Vic) to the court and the proposed defendants because it was thought that it was an application to which that Act applied. That is not correct.

1. Only pt 2 is relevant. By s 9, it applies ‘to any suppression order’. Section 3 defines ‘suppression order’ exhaustively to mean:

(a)       a proceeding suppression order;

(b)       an interim suppression order;

(c)       an order made under section 25 or 26;

(d)      an order made by the Supreme Court in the exercise of its inherent jurisdiction that prohibits or restricts the publication or other disclosure of information in connection with any proceeding, whether or not the information was derived from the proceeding.

1. ‘Proceeding’ is defined in that provision to mean ‘a civil proceeding or a criminal proceeding’.

1. ‘Proceeding suppression order’ is defined to mean ‘an order made under section 17’.

1. Section 17 gives a court or tribunal power to make a ‘proceeding suppression order’ as follows:

A court or tribunal on one or more of the grounds specified in section 18 may make a proceeding suppression order to prohibit or restrict the disclosure by publication or otherwise of –

(a)       a report of the whole or any part of a proceeding;

(b)       any information derived from a proceeding.

1. ‘Interim order’ is defined in s 3 to mean ‘an order under section 20’.

1. Section 20(1) gives a court or tribunal power to make an ‘interim order’ as follows:

If an application is made to a court or tribunal for a proceeding suppression order, the court or tribunal may make an interim order in respect of that application.

Other provisions of s 20 govern the making and duration of interim suppression orders and the need to finalise the application for the substantive proceeding suppression order as a matter of urgency.

1. Orders under ss 25 or 26 are ‘broad suppression orders’ in the County Court or the Magistrates Court.

1. Paragraph (d) of the definition of ‘suppression order’ in s 3 speaks for itself.

1. An order permitting a proposed civil proceeding to be issued in the name of plaintiffs identified by pseudonyms and requiring them to be identified in court documents only by those pseudonyms is not a ‘suppression order’ as defined in s 3. It does not come within any of the components of that definition. Such an order does not prohibit or restrict the publication or other disclosure of information in connection with a proceeding. It is a pre-commencement order that parties are to be named by way of pseudonym in court documents yet to be produced and filed. As a pseudonym order is not a suppression order under the Open Courts Act, it is not necessary for an applicant for such an order to comply with the  notice provisions of that Act.

1. The provisions of the Open Courts Act suggest that it was not intended to apply in situations like the present. Section 7(d) provides that the Act does not limit or otherwise affect:

the making of an order or decision by a court or tribunal that-

(i)        conceals the identity of a person by restricting the way the person is referred to in open court;

(ii)       restricts the way an event or thing may be referred to in open court;

(iii)      prohibits or restricts access to a court or tribunal file.

While this provision does not refer to pre-commencement pseudonym orders as such, it does indicate that the Act was not intended to apply to orders of that kind.   Such an order has the effect of concealing the identity of proposed parties by restricting the way that they may be referred to in court documents (cf para 7(d)(i)).

1. The court has power to make a pseudonym order by virtue of the inherent jurisdiction of the court[3] and the provisions of ss 18 and 19 of the Supreme Court Act 1986 (Vic).

   [3]By s 5(1) of the Open Courts Act, the inherent jurisdiction of this court is preserved.  However, suppression orders issued by the court in the exercise of that jurisdiction are covered by the provisions of that Act, as such orders are made in the exercise of its statutory jurisdiction.

1. In ABC v D1,[4] J Forrest J made a pseudonym order in a case involving the alleged sexual assault of a plaintiff in a small rural Victorian town.   The facts were not unlike those alleged in the present case.  His Honour applied the following principles, which he derived from the authorities and I gratefully adopt:

   [4][2007] VSC 480 (30 November 2007) (‘ABC’).

First, … 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.

Second, … 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.

Third, … 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.

Fourth, … 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. 

Fifth, … 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.

Sixth, … 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.

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.

I consider that the present case satisfies these principles.

1. In AA v BB,[5] I considered the scope of the powers of the court to make pseudonym orders in a case concerning children.  I held that it may be necessary to make orders where, in their absence:[6]

parties would be deterred from bringing proceedings for the vindication of their legal rights,[7] such as cases involving victims of blackmail,[8] negligence[9] or sexual assault[10] where the person would suffer public ridicule or acute personal embarrassment if his or her identity were to be disclosed in legal proceedings.  An order may be made in proceedings involving people with a mental illness, wards of the state or children in the parens patriae jurisdiction[11] and in proceedings involving trade secrets.[12]  It may be necessary to make an order for the avoidance of prejudice to the administration of justice where publicity would destroy or imperil the subject matter of the proceeding.[13]  The categories of proceeding in which an order may be made are not closed.[14]

In that case I made pseudonym orders because, without such orders, the applicant would be ‘deterred from seeking legal protection’ and ‘the subject matter of the proceeding would be destroyed’.[15]  That reasoning applies equally in the present case.

[5](2013) 296 ALR 353 (Bell J) (‘AA’).

[6]Ibid 389 [182].

[7]R v White (2007) 17 VR 308, 313 [21] (Whelan J).

[8]John Fairfax Group Pty Ltd (Receivers and Managers Appointed)v Local Court of New South Wales (1991) 26 NSWLR 131, 141 (Kirby P).

[9]TK v Australian Red Cross Society (1989) 1 WAR 335, 341 (Malcolm CJ).

[10]ABC [2007] VSC 480 (30 November 2007) [44] (J Forrest J); PPP v QQQ as the representative of the Estate of RRR (deceased) [2011] VSC 186 (6 May 2011) [34] (Dixon J). Section 4(1A) of the Judicial Proceedings Reports Act 1958 (Vic) makes it an offence to publish a report of a judicial proceeding identifying a victim sexual assault.

[11]Scott v Scott [1913] AC 417, 437 (Viscount Haldane LC).

[12]Ibid 438.

[13]Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532, 560–561 [41] (Gummow, Hayne, Heydon and Kiefel JJ) citing Australian Broadcasting Commission v Parish (1980) 29 ALR 228, 255 (Deane J); Assistant Commissioner Condon v Pompano Pty Ltd (2013) 295 ALR 638 [70] (French CJ) (‘Condon’).

[14]Russell v Russell (1976) 134 CLR 495, 520 (Gibbs J); Hogan v Hinch (2011) 243 CLR 506, 553-54 [90] (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Condon (2013) 295 ALR 638 [69] (French CJ).

[15]AA (2013) 296 ALR 353 [191].

1. Accordingly, I made the orders sought.   The orders of the court were to the effect that, in the proposed proceeding, the proposed plaintiffs are to be referred to by the pseudonyms ABC-1 and ABC-2 respectively, and that all documents filed in the proceeding (including pleadings, affidavits and orders) are to refer to the proposed plaintiffs in that way.  The orders are to remain in force until the death of both of the proposed plaintiffs as the reasons for making them no longer apply on the happening of those events.  Implicitly the orders are subject to further or other orders of the court.  I deferred the operation of the orders to give the applicants and the proposed defendants time to consider whether similar orders should be made in respect of the identities of the proposed defendants but no such applications were made.