E v Se - [2007] SASC 198

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
E v SE & ANOR
[2007] SASC 198
Judgment of The Honourable Justice Debelle
30 May 2007
EVIDENCE - PROHIBITION OF PUBLICATION OF EVIDENCE
Suppression order - application to prosecute action anonymously – plaintiff charged with criminal offences – defendants in this action to give evidence in criminal proceedings - whether suppression of the fact of proceedings and names of plaintiff and defendants is in the interests of the proper administration of justice – suppression order made.

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - TIME
Service of summons – extension of time - plaintiff charged with criminal offences at commencement of this action – whether service of summons upon defendants in this action would prejudice plaintiff’s criminal trial – extension of time granted.
Evidence Act 1929 s 69A; Limitation of Actions Act 1936 s 36; Supreme Court Act 1935 s 131; Supreme Court Rules 2006 R 34, R 39, R 42, referred to.
Andrew v Raeburn (1874) LR 9 Ch App 522; re JN Taylor Holdings Ltd (in liq) [2007] SASC 193; Russell v Russell (1976) 134 CLR 495; Scott v Scott [1913] AC 417; TK v Australian Red Cross Society (1989) 1 WAR 335, applied.

E v SE & ANOR
[2007] SASC 198
Civil

DEBELLE J. On Friday last, I heard an application for an order to entitle the plaintiff to prosecute an action anonymously in the sense that, instead of court documents bearing his name as plaintiff and the names of the two defendants, the names of each will be signified by a letter or letters. The application also sought an order that the time for serving the summons and statement of claim be extended for a further period of six months from the time of service allowed by the Supreme Court Rules 2006. Consequential orders were also sought.
I made an order that, until further order, the plaintiff be granted leave to prosecute this action anonymously and that, until further order, there be an order suppressing from publication, except to those necessary to prosecute the action, the fact that these proceedings have been instituted as well as information which might suggest that the proceedings have been issued or which might identify the parties to the proceedings. I said I would publish reasons for the order. I reserved judgment on the application to extend the time in which to serve the proceedings. These are the reasons for my decisions.
In this action the plaintiff claims damages for personal injuries and for loss of employment and other losses suffered in consequence of what he alleges were unlawful activities by the two defendants. He alleges that the defendants unlawfully required him to submit to an interview, unlawfully recorded that interview, and unlawfully carried out other investigations which resulted in him being charged with a number of criminal offences. He alleges that the defendants have been guilty of the tort…

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: [2007] SASC 198
Decision Date: 30 May 2007

CaseChat Overview and Summary

The plaintiff sought to commence proceedings against the defendants in the Supreme Court of South Australia while being charged with criminal offences. The plaintiff sought an order that the proceedings be conducted anonymously, including suppression of the fact of the proceedings and the names of the parties, as well as an extension of time to serve the summons on the defendants. The plaintiff submitted that the defendants would be required to give evidence in the plaintiff’s criminal proceedings and that publication of the fact of the civil proceedings and the parties’ names would prejudice the plaintiff’s criminal trial.

The court considered whether making a suppression order and granting an extension of time to serve the summons was in the interests of the proper administration of justice. The court held that the defendants would likely be required to give evidence in the criminal proceedings against the plaintiff and that service of the summons and publication of the proceedings would likely prejudice the plaintiff’s criminal trial. The court also held that the defendants’ rights to a fair trial would be prejudiced if the summons was served and the proceedings were not conducted anonymously.

Accordingly, the court made an order that the proceedings be conducted anonymously, including suppression of the fact of the proceedings and the names of the parties. The court also made an order that the time to serve the summons be extended. The parties were directed to lodge and serve further documents confidentially.

Orders