ANN v ABC & XYZ (No 1)

[2006] VSC 348

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 8554 of 2006

ANN	Plaintiff
v.
ABC and XYZ	Defendants

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JUDGE:	HOLLINGWORTH, J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 September 2006
DATE OF JUDGMENT:	19 September 2006
CASE MAY BE CITED AS:	ANN v ABC & XYZ (No 1)
MEDIUM NEUTRAL CITATION:	[2006] VSC 348

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

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff/Applicant	Mr Schulze	Stringer Clark
No other appearances

HER HONOUR:

1. I have before me an ex parte application on behalf of a proposed plaintiff seeking orders which would enable her to commence and conduct proceedings against the first-named defendant, her father, and the second-named defendant, her mother, without public disclosure of any of the parties’ identities.

1. In substance, what she seeks is an order that she be identified for all purposes of this application and the proposed proceeding simply as “ANN”, rather than by reference to her name or anything which would tend to suggest her identity.  Given that the proposed defendants are her parents, she says it is necessary not to disclose their identities either, otherwise her own identity would be thereby disclosed.

1. The plaintiff alleges that she was the victim of severe and regular physical and sexual abuse inflicted upon her by her parents during her childhood, between about 1970 and 1985.  She has been advised that her injuries are such as to give rise to a potential cause of action for damages against her parents.

1. The applicant relies upon the affidavit of her solicitor, the exhibits to which include a psychiatric report prepared by Professor Lorraine Dennerstein, dated 31 January 2006, which sets out in some detail the plaintiff’s background and psychiatric state.  Her condition is consistent with post-traumatic stress disorder and a number of other serious psychiatric and psychological injuries.  The solicitor’s affidavit contains further evidence as to the severity of the plaintiff’s current psychiatric state, which is alleged to be a consequence of the assaults and abuse to which she was subjected during her childhood.

1. The affidavit also deposes that the plaintiff is fearful of the publicity associated with instituting the proposed legal proceeding.  There is an obvious stigma attached to the circumstances that led to the alleged abuses and consequently the injuries.  She is concerned that, if it were generally known that she has suffered the abuses and injuries, she would be seriously affected in the local community in which she now lives in country Victoria.  She is also fearful that publicity associated with the proposed legal proceeding may in some way adversely affect her ongoing psychiatric and psychological treatment.  Professor Dennerstein’s report confirms that, in her opinion, it would be in the best interests of the plaintiff and her psychiatric condition that her anonymity be preserved.  Given that the proposed defendants are her parents, there is no way of preserving her anonymity without also preserving the anonymity of the proposed defendants.

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.  I was referred by counsel to a number of authorities, including 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. The judges in those cases have discussed in some detail the relevant principles and I do not propose to repeat them here.

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 the consultant psychiatrist, I am persuaded that public knowledge of the identity of the plaintiff would be likely to defeat the paramount object of the court, of doing justice according to law, because the plaintiff would reasonably be deterred from bringing the proposed proceeding unless public disclosure of her identity was prevented.  Further, her psychiatric condition is likely to be exacerbated by the disclosure of her identity.

1. Obviously I have not heard from, and may never hear from, the proposed defendants.  It may be that they will take the view that it is in their interests that the parties’ identities be disclosed.  If so, that may be a difficult argument for them to advance in the present case, given their relationship with the plaintiff, but I have to 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.