AS v Minister for Immigration and Border Protection
[2014] VSC 486
•15 AUGUST 2014 (revised 9 October 2014)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
S CI 2014 04423
| A S | Plaintiff |
| v | |
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION | Defendant |
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JUDGE: | DIXON J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 15 AUGUST 2014 |
DATE OF RULING: | 15 AUGUST 2014 (revised 9 October 2014) |
CASE MAY BE CITED AS: | A S v MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
MEDIUM NEUTRAL CITATION: | [2014] VSC 486 |
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PRACTICE AND PROCEDURE — Ex-parte application by minor through litigation guardian for suppression order – Identity of applicant to be concealed but no restriction on media reporting on proceeding – Pseudonym order granted — Discretionary considerations discussed - Claim for damages by 6 year old asylum seeker living in detention in Christmas Island — Real risk of psychological harm from disclosure of identity — Applicant might reasonably be deterred from bringing claims without protection of identity —Provisional diagnosis of post-traumatic stress disorder – s 7(d) Open Courts Act 2013.
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APPEARANCES: | Counsel | Solicitors |
| For the Proposed Plaintiff | Ms K Robertson (solicitor) | Maurice Blackburn |
| For the Proposed Defendant | Not applicable |
HIS HONOUR:
Solicitors acting for the parents of a proposed plaintiff have issued an application for a suppression order returnable today in the Practice Court. That application has been referred out to me.
It is not in doubt that having an inherent jurisdiction to control its proceedings and processes the court may make a suppression order. Until recently, the court's power to restrict public access to its proceedings by suppression orders and closed court orders was regulated by s 18 and s 19 of the Supreme Court Act 1986. These provisions have now been repealed and replaced by the Open Courts Act 2013.
The Open Courts Act does not limit or otherwise affect a court’s power to order that the identity of a litigant be concealed by restricting the way a person is referred to in open court, or prohibiting or restricting access to the court file.[1] The Open Courts Act recognises that a pseudonym order differs from other restrictions on open justice, such as suppression orders and closed court orders.
[1]See s 7(d) Open Courts Act 2013.
For a proceeding suppression order to be made under the Open Courts Act, it is necessary to comply with Part 3 of the Act. The order that I propose to make will not constitute a proceeding suppression order. There will be no effect on the public nature of the proceedings, and the ability of the media to fully report on proceedings will only be restricted on the issue of the identity of the plaintiff. The order will not directly restrain conduct by publication in relation to the proceeding, although a potential liability in contempt may arise from a publication if there is a breach of the order, for example by revealing the true identity of the plaintiff.
No need arises for media proprietors to be heard in respect of either the making or the revocation of the order that I will make. The order will be subject to any further order of the court.
At common law, the power to make pseudonym orders is well established. One category of case in which suppression, closed court and pseudonym orders are generally made to prevent prejudice in the administration of justice is where it is desirable to protect the safety of persons who are to be litigants or witnesses in the proceedings. Another example of a well-recognised category are proceedings that concern minors.[2]
[2]TTT and JJJ v State of Victoria [2013] VSC 162; AA v BB [2013] VSC 120; Re Hogan; Ex parte West Australian Newspapers [2009] WASCA 221.
Looking particularly at pseudonym orders, at common law those forms of orders have been made in the following categories of cases. Cases involving children, cases involving sexual offences, cases where the plaintiff would reasonably be deterred from bringing proceedings without a pseudonym order, or cases where the defendant would reasonably be deterred from defending the proceedings without a pseudonym order. In BK v ADB,[3] Nettle J accepted that a pseudonym order may be made in a case where disclosure of the identity of the plaintiffs might be sufficient to deflect the plaintiffs from prosecuting their case, which is to say they might reasonably be deterred from bringing proceedings unless public disclosure of their identities could be prevented.
[3][2003] VSC 129 [10] - [13].
The principles that apply in making pseudonym orders were succinctly distilled by Forrest J in ABC v D1 and Others; Ex Parte The Herald Sun & Weekly Times Limited.[4] His Honour said:[5]
[4][2007] VSC 480.
[5]At [65]-[71].
First, that 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, that 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, that the test to be applied by the court in making the pseudonym order is, to use the words of the statute, where it is necessary to do so in order not to prejudice the administration of justice.
Fourth, that 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 to 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, that 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, that 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.
His Honour’s fourth point, that genuinely held fears of psychological harm upon disclosure of identity will be a relevant factor for the court's consideration, is illustrated by TTT & JJJ v The State of Victoria.[6]
[6][2013] VSC 162 [18].
The present proposed plaintiff, whom I will refer to as AS, is aged six years. She is currently living in detention on Christmas Island. Her father has communicated with Ms Robertson, the applicant's solicitor, and provided the following instructions.
(a) He and his daughter are nationals of a foreign country and fear persecution from the government in their country of origin and its agents because of his political activities.
(b) He has provided some details of his concerns in that regard, which are set out in the affidavit. I need not set out in full those concerns for the purposes of this application, save to note that since he left his country of origin, government agents there have visited his father's house and asked about his whereabouts, and they have advised his father that he (AS's father) must report to the government and be prepared to accept punishment for his involvement in events in his country of origin.
(c) He has expressed fear that if his daughter's name is published, and she is forced to return to their country of origin, its government and its agents will harm her and her immediate family members. He is fearful that if her name or other identifying information is published, government security forces in their country of origin will take adverse action against those of her relatives that remain in the country of origin, including threats, harassment and persecution.
(d) He is also fearful that if the name of their country of origin is published, the government in that country will be able to identify him and his family members by matters that may be alleged, or evidence that may be adduced in the proceeding.
On 18 July 2014, AS, her younger brother, and her parents were interviewed by Dr Sarah Mares. Dr Mares is a specialist infant, child and family psychiatrist with an established clinical and academic interest in the perinatal, infant and early childhood periods, and in prevention and intervention within disadvantaged populations. She has considerable qualifications and experience, and she has provided to the applicant's solicitors a confidential psychiatric assessment and report in respect of each of the members of AS's family.
It is necessary only to make some brief observations at this stage about Dr Mares' assessment of AS. Dr Mares reports that AS experiences symptoms of separation anxiety, a stutter, disturbed sleep with recurrent nightmares and secondary nocturnal enuresis. Dr Mares describes AS in the following terms.
She appeared a thin, sad and anxious child. She looked very solemn and was tearful at times and did not smile or speak spontaneously during the interview. She stood close to her father at the table and watched her mother, and did not ask for anything. She was keen to draw a picture about the family, and when asked questions directly, she was articulate about her concerns, despite occasionally having an evident stutter.
Dr Mares expressed her preliminary diagnosis in these terms:
AS is an extremely sad and anxious child who is significantly symptomatic. She requires a comprehensive psychiatric assessment by a specialist child and family clinician. My provisional diagnosis is post-traumatic stress disorder, given she is so preoccupied with the bars and the gaoling. She also has symptoms suggesting separation anxiety disorder which is not unreasonable in her current circumstances. She also meets criteria for secondary nocturnal enuresis and childhood onset fluency disorder.
A differential diagnosis of major depression with anxiety may be appropriate. It is unusual and extremely concerning to see this level of persisting psychiatric disturbance in a six year old child.
I have carefully considered the fundamental principle of open justice and the countervailing considerations put on behalf of the applicant that favour the making of a pseudonym order. I am satisfied that public disclosure of the proposed plaintiff's identity would prejudice the administration of justice for the following reasons.
First, the proposed plaintiff is a minor. She is only six years of age.
Second, her father has stated his reluctance to permit the proceedings to go ahead if her name must be disclosed. I am satisfied that he has an honestly held basis for his concerns and that the plaintiff will be unable to seek redress for her alleged injuries unless an order is made.
Third, the proceeding will require a litigation guardian, and I am informed by the solicitor for the applicant that Sister Bridget Arthur has agreed to act as AS's litigation guardian.
Next, it is unusual that a person seeking asylum in Australia under the provisions of the Migration Act 1958 seeks to bring a claim in a state court for damages for tortuous conduct. Such persons usually litigate in the Federal Court in connection with applications under the Migration Act. There is a general practice in the Federal Court to refer to persons seeking asylum by a pseudonym. That practice appears to be based upon the recognition in the Migration Act of the special concerns faced by refugees if their identities are published in the course of judicial process. The provisions of that Act do not by their terms extend to proceedings in this court.
Nevertheless, recognition by the Commonwealth Parliament that it is desirable to minimise the risk that flows from publication of the identity of asylum seekers who have applied for protection in Australia, both personally and in respect of their family and colleagues overseas, reinforces the broad discretionary considerations that I have referred to.
Dr Mares’ report persuades me that there is a real risk that the proposed plaintiff is suffering, and continues to suffer psychological harm, and that her suffering may be exacerbated if her name is published. Publication of her identity may lead to issues from which a young child ought to be protected. AS clearly is suffering from a number of fears, evident in the diagnosis that the psychiatrist has made. Predominantly the fears that I have referred to are those that have been expressed by her father, but it is appropriate to have regard to what her father says, rather than to expect a six year old girl to articulate all of the relevant fears that she might be experiencing.
Finally, it is probable that this proceeding may attract significant media attention, rendering it more probable that the identity and claims of AS and her family would come to the attention of government and security forces in her country of origin. I accept that AS is in a highly vulnerable psychological condition and deterioration in her condition could have significant implications for her ongoing health.
To the extent that this can be protected by a pseudonym order, AS is entitled to pursue a claim for damages without undertaking a significant risk that her health will substantially deteriorate. A pseudonym order will not preclude media reporting of the proposed proceeding and of the issues that it raises. The trial and the directions hearings will be conducted in open court. The extent of interference with the principles of open justice that is likely to be occasioned by this order is minimal.
I am satisfied that the proper requirements of the administration of justice warrant the making of the order.
I propose to order:
1.In the proposed proceeding, the plaintiff only be referred to by the pseudonym AS, and that all documents filed in the proceeding only refer to the plaintiff as AS.
2.That the affidavit of Katie Elizabeth Robertson sworn 14 August 2014 and its exhibits are to remain confidential and be placed on the court file in a sealed envelope that is not to be reopened, nor its contents revealed to any person except by order of a judge.
3.An authenticated copy of this order shall be served on the defendants with the writ.
4.The costs of this application are the plaintiff's costs in the cause.
The only other matter that I mention, Ms Robertson, is that it would be appropriate when you issue your writ to also issue a summons for directions, seeking admission into the Major Torts List and directions for the preparation and conduct of the proceeding. If you are in a position to do so, it might be convenient to make that summons for directions returnable in the Major Torts list on 26 September.
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