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

1. 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.

2. 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 plaintiff's fear of threats and retribution as a likely result of the commencement and continuation of the proceedings.

3. The affidavit discloses that the plaintiff was involved in proceedings in the Health Care Complaints Commission and to having received threatening and unpleasant communications through social media and otherwise as a result of her complaints about the proposed defendant in these proceedings.

4. In Rhinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 the Chief Justice set out what must be shown in terms of what was necessary within the meaning of s 8(1)(c) of the Act. In AB (a pseudonym) v R (No 3) (2019) NSWLR 1046 [2019] NSWCCA 46 the Court of Criminal Appeal discussed the alternative approaches to the interpretation of s 8(1)(c). The Court concluded in that case that what has been called the calculus of risk approach identified by Justice Nettle in the High Court in AB (a pseudonym) v CB (a pseudonym) [2019] HCA 16 should be the appropriate test.

5. I am satisfied on the basis of that test that an order under the Act is necessary to protect the safety of the plaintiff in the present case.

6. Some practical difficulties arise about the making of an order allowing proceedings to be commenced in the name of a pseudonym prior to the commencement of the proceedings. Those difficulties might be thought to arise because the only form of originating process that the rules recognise is either a summons or a statement of claim. A notice of motion relied on here by the plaintiff to obtain the non-publication orders under the Act does not constitute an originating process.

7. Nevertheless, analogously with an urgent ex parte application for an injunction to restrain some action, the Court will consider a notice of motion seeking interlocutory relief prior to the actual filing of the summons in those proceedings seeking the final relief. Accordingly, I consider that I have the power to direct in advance of the filing of the statement of claim in these proceedings that the plaintiff be permitted to do so using a pseudonym from the outset.

8. I note that the present application has been made ex parte. One reason at least for that was that the defendant has no interest in whether or not the proceedings are commenced and conducted in the name of a pseudonym. I am satisfied that it was appropriate that the present application should be made ex parte. Ultimately, of course, the defendant will need to be advised of the identity of the plaintiff no later than when he is served with the statement of claim.

9. I make these orders:

1. The statement of claim by the plaintiff is to be filed by Tuesday 6 April 2021.

2. Order that until further order the plaintiff is to be known as ABC, is to be described in all pleadings and other documents filed or served in the proceedings as ABC, and except as may be necessary for the proper conduct of the proceedings be only referred to as ABC.

3. I order that until further order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) except as may be necessary for the proper conduct of the proceedings there be a non-publication order in respect of the name and identity of the plaintiff upon the grounds that the order is necessary to protect the safety of the plaintiff.

4. I order that the order is to apply throughout the Commonwealth of Australia.

5. Liberty to apply on 2 days’ notice.

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Decision last updated: 07 April 2021