BK v ADB
[2003] VSC 129
•19 February 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT
No. 4934 of 2003
| BK | Plaintiff |
| v | |
| ADB | Defendant |
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JUDGE: | NETTLE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 February 2003 | |
DATE OF RULING: | 19 February 2003 | |
CASE MAY BE CITED AS: | BK v ADB | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 129 | |
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Practice and procedure – suppression order – exceptional circumstances - prohibition of name of party pending hearing and determination of application under s.23A of the Limitation of Actions Act 1958 – Supreme Court Act 1986, s.18(1)(c).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Gordon | Riordan & Partners |
| For the Defendant | No appearance |
HIS HONOUR:
I have before me an ex parte application on behalf of Rosemary Annie Jarmyn for orders that publication be prohibited of any report of the application or of an application pursuant to s. 23A of the Limitation of Actions Act 1958 or of the commencement of proceedings proposed to be instituted against a number of defendants or of a number of other documents and things which have been or are likely to be brought into existence for the purposes of that application and those proceedings.
In substance what is sought is an order that the applicant be identified for all purposes of this application and the contemplated litigation simply as BK, rather than by reference to her name or anything which would tend to suggest her identity.
The applicant has sworn an affidavit in support of the application in which she deposes to sexual abuse that was inflicted upon her in the 1950s and 1960s whilst she was in the care of agencies of the Anglican Church and that it is her intention to institute proceedings against office holders of the Church for damages to compensate her for the injuries which she is alleged to have suffered.
The applicant further deposes as to the severity of her psychiatric state, itself the consequence, it is suggested, of the sexual assaults and abuse to which she was subject; that she is caused considerable anguish when she recalls or is caused to focus upon the suffering that she endured; and that, consequently, she has grave concerns that unless her anonymity is preserved in the proceedings she will suffer further damage to her psychiatric well-being that will be perilous to her health.
Exhibited to her affidavit is a report of Dr John S. Steinberg, a consultant psychiatrist in which it is said that, in Dr Steinberg’s opinion, if the matter were not dealt with in a confidential fashion, the applicant’s state would be significantly worsened. She would develop increasing levels of distress, depression, fear and anxiety, worsening flash-backs and memories of traumatic events, possibly an exacerbation of her substance abuse and possibly suicidal ideation. Dr Steinberg is of the opinion that the applicant’s anonymity should be preserved within the proceedings to protect the applicant from worsening of her mental state and worsening of her post-traumatic stress disorder symptoms.
The power 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 otherwise is to be found within the inherent jurisdiction of the court to conduct its own proceedings in the way best calculated to advance the interests of justice.
Courts at the highest level have stressed the fundamental importance of openness in the administration of justice and thus it is the ordinary rule of this court, as with other courts of this country, that proceedings shall be conducted publicly and in open view. That rule has been said to have the virtue that proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses might flourish undetected. It has been said also that the public administration of justice tends to maintain confidence in the integrity and independence of the courts and that the fact that courts of law are held openly and not in secret is an essential aspect of their character.[1]
[1]See Russell v Russell (1976) 134 CLR 495 at p 520 in the judgment of Gibbs J; David Syme and Co v General Motors Holden’s Ltd [1984] 2 NSWLR 294 at 300 in the judgment of Street CJ; and Bromfield, ex-parte West, Australian Newspapers Limited (1991) 6 WAR 153 at 164 in the judgment of Malcolm CJ.
Plainly, however, the rule requiring open justice is not absolute and there are exceptions to it. As it was put by Kirby P in John Fairfax Group Pty Ltd (Receivers and Managers appointed) and Anor v Local Court of New South Wales and Ors[2], a common justification for the special exceptions is a reminder that the open administration of justice serves the interests of society and is not an absolute end in itself. If the very openness of court proceedings would destroy the attainment of justice in the particular case, as for example, by vindicating the activities of the blackmailer, or discourage its attainment in cases generally, as by frightening off blackmail victims or informers, or would derogate from even more urgent considerations of public interest, as by endangering national security, the rule of openness must be modified to meet the exigencies of the particular case.
[2](1992) 26 NSWLR 131 at 141.
So to say is certainly not to conclude that the court is open to depart from the ordinary rule simply because it may seem convenient and desirable from the point of view of one or other party that their identity be kept confidential or that they not be subjected to publicity or scrutiny of the kind which often, if not ordinarily, attends litigation in this court. Hence, as Kirby P observed in Rabos Australia Pty Ltd v Jones[3], an appreciation of the history, even if only briefly told, will illustrate the exceptional nature of any such order. To much the same effect in John Fairfax & Sons Ltd v Police Tribunal of New South Wales and Anor[4], McHugh JA said the fundamental rule of common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule.
[3](1985) 2 NSWLR 47
[4](1986) 5 NSWLR 465.
In the course of submissions by Mr Gordon on behalf of the applicant, reference was made to the judgment of Malcolm CJ in the matter of TK v Australian Red Cross Society[5], in which his Honour observed that the circumstances in which the court will depart from the fundamental principle of the public administration of justice are exceptional, but that such exception may be found in, amongst other places, 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.
[5](1989) 1 WAR 335.
On that basis, Malcolm CJ made orders prohibiting the disclosure of the identify of haemophiliacs in proceedings instituted against the Australian Red Cross in connection with the supply of contaminated blood, because it was established that the disclosure of their identities would be likely to attract such opprobrium that they might be deterred in the prosecution of their case.
Since TK v Australian Red Cross Society was decided, there have been many applications of the sort which was made in that case and many orders of the kind which were made by Malcolm CJ. Hence as Beach J observed in Various Plaintiffs v Commonwealth Serum Laboratories Ltd[6], the form of application is no longer unusual in this court or for that matter in the Supreme Courts of certain of the other States. Already there have been some 80 similar applications made to and granted by the court.
[6]Unreported 5 May 1992.
Having regard to the contents of the applicant’s affidavit, including in particular the draft statement of claim which is exhibited to the affidavit (which it is said will or will in substance be endorsed upon the writ in the proceedings proposed to be instituted) and to the report of the applicant’s consultant psychiatrist, I am persuaded that public knowledge of the identity of the applicant would be likely to defeat the paramount object of the court, of doing justice according to law, because the applicant would reasonably be deterred from bringing the proceedings unless public disclosure of her identity were prevented.
I reach that view, not only because of the concerns harboured by the applicant to which she herself deposes (as to the anxiety and distress which she would likely suffer if her identity were disclosed), but also because it appears to me that if her condition were exacerbated in the fashion which is feared by the consultant psychiatrist, the proceeding would be likely to stop very shortly after it started.
In the result, I am prepared to make orders substantially in the form of those which are sought by the applicant. That, however, is not the end of the matter. In the draft proposed statement of claim to which I have already referred it is made plain that at least one and I think more than one of the proposed defendants are men in public office whose affairs are the subject of continued observation and report in the press and other media. I apprehend therefore that if their identities were to be made public, these proceedings would attract the closest scrutiny from the press and other media, to the point where the defendants might be prevented from properly conducting their defence of the proceedings.
Obviously, I have not yet heard from and may not hear from the proposed defendants. It may be that my concerns are ill-founded or that even if justified, the proposed defendants take the view that it is otherwise in their interests that their identities be disclosed or at least that it is not of sufficient concern to seek that they not be disclosed. All I can say for the present is that it does not seem to me that the public interest necessarily requires that the proposed defendants’ names be published now or during the course of the proposed proceeding, although it might be different when the trial is concluded.
As at present advised, and I stress that what I say is said without the benefit of submission from any of the proposed defendants and thus cannot and does not represent my final view on the matter, it seems to me important for the administration of justice that the proposed defendants be able to take part in the litigation free from the concern that they might reasonably feel that publication of the proceedings would attract adverse comment from a number of sections of society, including special interest groups.
It is also possible, although it has not so far been suggested by Mr Gordon, that identification of the proposed defendants might, in an indirect way, facilitate identification of the plaintiff, which, for the reasons already given, I consider plainly to be undesirable.
My tentative conclusion therefore is that the proper course would be to make orders prohibiting publication of the proposed defendants’ identities, to the same extent as that which is sought in respect of the applicant’s identity, and I add that I am to some considerable extent confirmed in that view by the observations made by Ashley J in AAA v Blackwell[7] where, in the course of trial, his Honour ordered that a defendant’s identity be kept confidential until the trial had concluded.
[7]Unreported 24 August 1994.
With those considerations in mind and in the absence of any submissions on behalf of the proposed defendants, I consider that the orders appropriate to be made would be in the form or to the effect of the proposed orders set out in the notice of ex parte application which is before me, modified so as to apply as much to each of the proposed defendants as in form they do at the present time apply to the identity of the plaintiff.
Before however making the orders which are sought, or any other order of the kind which I think perhaps might better be made, I consider that the proposed defendants should be given the opportunity albeit a limited opportunity to be heard. Accordingly, I have determined that I will direct that a copy of the notice of ex parte application and of the affidavits and exhibits in support, including the draft statement of claim and report of the consultant psychiatrist, be served on each of the proposed defendants.
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