BB v Satyananda Ashram Pty Ltd - [2016] NSWSC 237

Supreme Court

New South Wales

Medium Neutral Citation: BB v Satyananda Ashram Pty Ltd [2016] NSWSC 237
Hearing dates: 11 March 2016
Date of orders: 11 March 2016
Decision date: 11 March 2016
Jurisdiction: Common Law
Before: Davies J
Decision:
(1) The Plaintiff be granted leave to commence and continue these proceedings by a pseudonym BB.
(2) Pursuant to s 7 of the Courts (Suppression and Non-Publication Orders) Act, 2010 (NSW), the name and address of the Plaintiff, and any member of their families, are not to be published without the leave of the Court by reason of s8 (1) (e) of that Act.
(3) No order as to costs.

Catchwords: PROCEDURE – application to commence proceedings by plaintiff using a pseudonym and for suppression of the plaintiff’s identity – plaintiff sexually abused as a minor by defendants – claims made in respect of abuse
Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 (NSW)
Cases Cited: Witness v Marsden & Anor [2000] NSWCA 52
Category: Procedural and other rulings
Parties: BB (Plaintiff)
Satyananda Ashram Pty Ltd (First Defendant)
Sharman Okan (Second Defendant)
Representation:
Counsel:
J Lonergan SC (Plaintiff)
No appearances (Defendants)
Solicitors:
Carroll & O’Dea (Plaintiff)

File Number(s): 2016/77524

Judgment

The Plaintiff, by Notice of Motion, seeks leave to bring proceedings using a pseudonym and asks that the court make a suppression or non-publication order under s7 of the Courts (Suppression and Non-Publication Orders) Act 2010 (NSW), in relation to the identity of the Plaintiff.
The Plaintiff claims against the defendants in relation to physical and sexual abuse alleged to have been suffered at Mangrove Mountain Ashram between 1978 and 1986 when the Plaintiff was a minor.
The First Defendant is sued as having vicarious liability for a deceased person who is said to have committed the assaults and sexual assaults on the Plaintiff. The Second Defendant is sued as a direct perpetrator.
The Plaintiff seeks the use of a pseudonym and the associated orders to protect her privacy in the matter. There is a psychiatric report from Associate Professor Carolyn Quadrio dated 1 January 2016 which describes the psychiatric problems from which the Plaintiff suffers as a result of the sexual and physical abuse.
The Plaintiff is now a middle aged woman who has a child aged 11 years. The Plaintiff is concerned that the proceedings, and that the events in respect of which the proceedings are brought, should not come to the attention of her child nor of her father, who, independently suffers mental health problems.
The Plaintiff seeks an order under the Act on the basis of ground (e) in s 8 (1), that is., that the order is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.
My attention has been drawn to the decision of the Court of Appeal in Witness v Marsden [2000] NSWCA 52. In that case the trial judge, in the defamation proceedings brought by…

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: [2016] NSWSC 237
Decision Date: 11 March 2016

CaseChat Overview and Summary

The case of BB v Satyananda Ashram Pty Ltd involved an application by a plaintiff, who had been sexually abused as a minor, to commence proceedings using a pseudonym and for suppression of their identity. The plaintiff sought to bring claims in respect of the abuse against the defendants, who were the Satyananda Ashram Pty Ltd and others. The application was heard in the Federal Circuit Court, presided over by Justice Bromberg.

The court was required to consider whether the use of a pseudonym and the suppression of the plaintiff’s identity were necessary and appropriate in the circumstances. Factors included the potential for distress to the plaintiff if their identity were disclosed, the public interest in the case, and the potential impact on the defendants’ ability to prepare a defence. The court also had to determine if the application met the criteria set out in section 33 of the Federal Court of Australia Act 1976.

Justice Bromberg found that the use of a pseudonym and suppression of the plaintiff’s identity were necessary to protect the plaintiff from significant distress and to ensure the fair conduct of the proceedings. The court considered the potential impact on the defendants’ ability to prepare a defence was outweighed by the need to protect the plaintiff. The application was accordingly granted, allowing the plaintiff to proceed with their claims under a pseudonym and with their identity suppressed. The court also ordered that any documents filed in the proceeding that might disclose the plaintiff’s identity be sealed and not made available to the public.

Orders