BK v ADB

Case [2003] VSC 129 19 February 2003

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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…

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.

Continue reading BK v ADB

Details

AGLC: BK v ADB [2003] VSC 129
Case: [2003] VSC 129
Decision Date: 19 February 2003

CaseChat Overview and Summary

The case of BK v ADB involves a dispute concerning a suppression order and exceptional circumstances under the Limitation of Actions Act 1958. The matter was heard in the Supreme Court of Victoria. The primary issue before the court was whether there were exceptional circumstances to warrant the suppression of the name of a party pending the hearing and determination of an application under section 23A of the Limitation of Actions Act 1958. The applicant sought to maintain anonymity during the proceedings due to concerns about potential harm if their identity was disclosed.

The court considered the legal framework governing suppression orders and the factors pertinent to determining exceptional circumstances. It examined the relevant provisions of the Supreme Court Act 1986, specifically section 18(1)(c), which allows the court to make an order preventing the publication of the name of a party if it is in the interests of justice to do so. The applicant argued that revealing their identity could result in significant personal and professional harm. The court needed to weigh these concerns against the public interest in transparency and open justice.

After evaluating the evidence and arguments presented, the court concluded that exceptional circumstances did exist that justified the suppression of the party's name. The court determined that the potential harm to the applicant if their identity was disclosed outweighed the public interest in open justice. Consequently, the court made an order suppressing the name of the party pending the hearing and determination of the application under section 23A of the Limitation of Actions Act 1958. This decision reflects the court's consideration of both the applicant's rights and the broader principles of justice and fairness.

Orders