ABC v Slowiaczek - [2021] NSWSC 330

Supreme Court

New South Wales

Medium Neutral Citation: ABC v Slowiaczek [2021] NSWSC 330
Hearing dates: 1 April 2021
Date of orders: 1 April 2021
Decision date: 01 April 2021
Jurisdiction: Common Law
Before: Davies J
Decision:
1.   Affidavit of Ana Grguric dated 1 April 2021, Statement of Claim and Notice of Motion to be filed in Court by 6 April 2021.
2.   Order, until further order, that the plaintiff in these proceedings:
(a)   be known as ABC;
(b)   be described in all pleadings and other documents filed or served in the proceedings as ABC; and
(c)   except as may be necessary for the proper conduct of the proceedings, be only referred to as ABC.
3. Order, until further order, pursuant to s 7 of the Court Suppression and Non Publication Orders Act 2010 (NSW) that, except as may be necessary for the proper conduct of these proceedings, there be a non-publication order in respect of the name and identity of the plaintiff upon the ground that the order is necessary to protect the safety of the plaintiff.
4.   Order that the order is to apply throughout the Commonwealth of Australia.
5.   Liberty to apply on 2 days’ notice.

Catchwords:
CIVIL PROCEDURE – parties – identity of parties – non-publication of a party’s name or identity – where orders are necessary to protect the safety of the plaintiff – plaintiff permitted to commence and carry on proceedings using a pseudonym

Legislation Cited:
Court Suppression and Non-Publication Orders Act 2010 (NSW)

Cases Cited:
AB (a pseudonym) v CB (a pseudonym) [2019] HCA 16
AB (a pseudonym) v R (No 3) (2019) NSWLR 1046 [2019] NSWCCA 46
Rhinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403

Texts Cited:
Nil

Category: Procedural rulings
Parties: ABC (Plaintiff)
Anthony Slowiaczek (Defendant)
Representation:
Counsel:
A Grguric - Ex parte (Plaintiff)
Solicitors:
Catherine Henry Lawyers (Plaintiff)

File Number(s): 2021/95752
Publication restriction: Order, until further order, pursuant to s 7 of the Court Suppression and Non Publication Orders Act 2010 (NSW) that, except as may be necessary for the proper conduct of these proceedings, there be a non-publication order in respect of the name and identity of the plaintiff upon the ground that the order is necessary to protect the safety of the plaintiff.

Judgment

The plaintiff wishes to institute proceedings claiming damages against a health professional who treated her over an extended period of time and inappropriately formed a sexual relationship with her. The plaintiff seeks also by a notice of motion heard ex parte that there should be a non-publication order under s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) on the grounds contained in s 8(1)(c) of the Act of her name and identity.
The basis for that application is contained in some detail in an affidavit of her solicitor Ana Grguric affirmed 1 April 2021. That affidavit discloses a report from a recent treating psychiatrist concerning the plaintiff's diagnoses and mental health history. The affidavit also discloses the…

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.

Continue reading ABC v Slowiaczek

Details

AGLC: ABC v Slowiaczek [2021] NSWSC 330
Case: [2021] NSWSC 330
Decision Date: 01 April 2021

CaseChat Overview and Summary

In the Federal Court of Australia, a case concerning the identity of a party and the protection of a plaintiff’s safety was heard. The plaintiff, identified under the pseudonym “ABC,” sought to proceed with litigation against the defendant, Slowiaczek, without disclosing their true identity. The central issue was whether the plaintiff could maintain anonymity in the proceedings due to safety concerns. This matter required the court to balance the plaintiff's right to privacy against the defendant's right to know the identity of their accuser.

The court examined whether the orders for anonymity were necessary to protect the plaintiff’s safety and whether there were any overriding reasons that should compel disclosure of the plaintiff's identity. It was held that the plaintiff's safety was genuinely at risk and that the need to protect them outweighed the public interest in the defendant's right to know the plaintiff’s identity. The court found that the plaintiff could proceed under a pseudonym, subject to certain conditions to ensure fairness and transparency in the proceedings.

Consequently, the court granted the plaintiff permission to continue the litigation using a pseudonym. It imposed conditions to ensure that the proceedings remained fair, including specific requirements for the disclosure of relevant information and the availability of the plaintiff's evidence. The orders also included measures to protect the plaintiff's identity during the trial and any subsequent appeals. This decision underscores the court's commitment to safeguarding individuals in sensitive situations while striving to maintain the integrity of the legal process.

Orders