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:

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.

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.

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.

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.

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…

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: [2006] VSC 348
Decision Date: 19 September 2006

CaseChat Overview and Summary

The case of ANN v ABC & XYZ (No 1) involves a plaintiff who sought to suppress the publication of her name in the context of a proposed proceeding against the defendants. The application was made in the Federal Court of Australia. The plaintiff argued that the publication of her name would result in substantial harm and distress, and therefore, exceptional circumstances existed to warrant a suppression order.

The central legal issues that the court had to address included whether the plaintiff had demonstrated that the publication of her name would cause substantial harm and distress, and whether these circumstances were exceptional enough to justify a suppression order. The court had to balance the plaintiff's right to privacy and protection from harm against the public interest in open justice and freedom of expression.

The court found that the plaintiff had not sufficiently demonstrated that the publication of her name would cause substantial harm and distress. It was held that the potential harm and distress were not sufficiently severe or unique to meet the threshold for an exceptional circumstances suppression order. Consequently, the court declined to grant the order, emphasising the importance of open justice and the public's right to be informed about court proceedings, subject to specific and narrowly defined exceptions.

As a result of the court's reasoning, the application for a suppression order was dismissed. The court made it clear that any future applications would need to provide stronger evidence of substantial harm and distress, as well as a more compelling demonstration of exceptional circumstances.

Orders