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

1. 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. 

2. 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. 

3. 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 of misfeasance in a public office, have acted in breach of statutory duties, and have been guilty of misrepresentation and negligent mis-statement.

4. As the plaintiff’s claim includes a claim for damages for personal injury, the plaintiff must commence the action within three years after the cause of action accrued: s 36 of the Limitation of Actions Act 1936.  The events the subject of these proceedings occurred in early 2004.  The plaintiff therefore has to commence this action in early 2007.  Lest the action might have been commenced out of time, the plaintiff has applied for an extension of time within which to commence it.  Rule 39 of the Supreme Court Rules 2006 requires that the proceedings be served within six months of service unless the court extends the time for service.  This action was commenced on 17 May.  The summons and statement of claim must, therefore, be served on or before 18 November 2007 unless the plaintiff obtains an extension of time within which to serve them. 

5. As already mentioned, the applicant has been charged with a number of criminal offences.  He has been committed for trial in this court.  The trial will commence on 10 September 2007.  It is estimated that it will occupy 12 weeks.  On 3 July 2006, Layton J made orders suppressing from publication

   (a)the name and image of the plaintiff or any material intending to identify him; and

   (b)the fact that the charges against him involve allegations by more than one complainant. 

   The plaintiff is concerned that the criminal proceedings should not be prejudiced by the fact that this action has been instituted. 

   Anonymous Proceedings

6. I deal first with the application to prosecute this action anonymously.  Rule 34 of Supreme Court Rules 2006 requires that an action be commenced by a summons.  The summons and other documents thereafter filed in respect of that action bear the name of the parties.  That is the effect of both Rule 42 and of the forms approved pursuant to Rule 42 which contemplate that parties to legal proceedings are identified by name.

7. The summons, statement of claim and other pleadings are documents which are available for inspection by any member of the public: s 131(1) of the Supreme Court Act 1935.  The ability to inspect court documents reflects the fundamental principle of open justice, that is to say, the principle that courts administer justice publicly and in open court: Scott v Scott [1913] AC 417; Russell v Russell (1976) 134 CLR 495 per Gibbs J at 520.

8. It is, however, well settled that there are exceptions to the rule.  Those exceptions are grounded on a more fundamental principle that prevails over the principle of open justice, namely, that the chief object of courts of justice is to ensure that justice is done: Scott v Scott at 437 per Viscount Haldane LC; Russell v Russell (supra).  In the exercise of their inherent power courts will not conduct their proceedings in public if to do so would destroy the subject matter of the proceedings: Andrew v Raeburn (1874) LR 9 Ch App 522 approved in Scott v Scott.  In re JN Taylor Holdings Ltd (in liq) [2007] SASC 193 the relevant principles are set out. Orders which depart from the fundamental principle of open justice are exceptional. It must be demonstrated that the orders are strictly necessary for the attainment of justice: Scott v Scott per Viscount Haldane LC at 438. One instance when the court will make orders to preserve confidentiality is when parties would be deterred from bringing proceedings because of the odium which might be encountered if their identities were disclosed publicly: TK v Australian Red Cross Society (1989) 1 WAR 335.

9. The inherent power of the court to make orders to protect confidentiality or ensure that matters are heard and dealt with in a confidential manner is supplemented by the terms of s 69A of the Evidence Act 1929, which authorises the court to make a suppression order to prevent prejudice to the proper administration of justice. The common law principles which I have mentioned inform the circumstances in which an order may appropriately be made under s 69A to prevent prejudice to the proper administration of justice: re JN Taylor Holdings Ltd (in liq) at [13]. Those principles also satisfy the requirements of s 69A(2) of the Evidence Act: re JN Taylor Holdings Ltd (in liq) at [24].

10. In support of his application the plaintiff points to the fact that there was extensive publicity when he was arrested.  On the day after his arrest a front page article appeared in the Sunday Mail newspaper.  At a later time, when the plaintiff made an application for judicial review, a reporter from the Australian Broadcasting Corporation attended the hearing and the plaintiff’s solicitor was contacted by a reporter from the Sunday Mail which subsequently published an article concerning the court’s decision. 

11. The facts and allegations pleaded in the statement of claim do not directly relate to issues to be ventilated in the criminal proceedings.  Nevertheless, they have a bearing on issues which might arise in the course of the trial in that they concern the manner in which the defendants requested the plaintiff to be interviewed and the allegedly illegal manner in which the interview was conducted.  The statement of claim also contains allegations that subsequent investigations were conducted unlawfully by the defendants.  The defendants are potential witnesses in the criminal proceedings.  I am satisfied that there is a significant risk that it would prejudice the plaintiff’s criminal trial if the facts and allegations in the statement of claim were published.  There is a real likelihood that, if the orders sought by the plaintiff were not made, the prosecution would become aware of the proceedings.  That in turn leads to the likelihood that it would be alleged against the plaintiff that he had instituted the proceedings in an attempt to intimidate the defendants as witnesses in the criminal proceedings or was making an attempt to get them to alter their evidence in those proceedings.  There is a real likelihood that the plaintiff will be extensively cross-examined to this effect.  This could unfairly prejudice the plaintiff in the eyes of the jury.  I am satisfied that, for the reasons to be given, the plaintiff has instituted these proceedings only in order to preserve this action.  If he does not issue the proceedings before the time limit prescribed by the Limitation of Actions Act expires, he will have lost the ability to prosecute the cause of action.  In other words, but for the operation of the limitation period, the plaintiff could have waited until after the criminal trial had been completed before he issued these proceedings.   

12. I am also satisfied that given the earlier attention of the media, there is a real likelihood that the fact of these proceedings and the allegations will be published in either the press or on radio, television or in some other way unless an order is made that the action be prosecuted anonymously and that there be an order suppressing from publication the fact of the proceedings or anything which might identify the parties at the criminal trial.  The order should remain in operation only until the conclusion of the criminal trial.  There is no reasonable basis for the order to continue beyond that time.  

13. For these reasons, I made orders that the proceedings be conducted anonymously and suppressing publication of anything referring to the action.  The orders were made to prevent prejudice to the proper administration of justice.

    Extending Time for Service

14. Rule 34 of the Supreme Court Rules 2006 provides that a summons must be served within six months after it has been issued.  The criminal trial has been listed to commence on 10 September 2007 and it is estimated that it will occupy a period of 12 weeks.  The period of six months in which the summons must be served will, therefore, expire towards the end of the trial. 

15. There is a real likelihood that, if the proceedings are served on the defendants and the prosecution become aware of them, the consequences listed in paragraph 11 above would follow, causing unfair prejudice to the plaintiff in the eyes of the jury.   

16. The plaintiff disavows any intent to bring any pressure on the defendants.  I repeat that I am satisfied that his purpose is only to institute these proceedings before the time limit prescribed by the Limitations of Actions Act expires.  In addition, he does not wish to serve the proceedings until the criminal trial has been heard, when he will know whether he has been acquitted or convicted.  The objective facts clearly point to the conclusion that the plaintiff’s only purpose is to keep his cause of action on foot.  I am satisfied that his only purpose in applying for an extension of time within which to serve is to ensure that the criminal trial proceeds in a proper manner without any suggestion that he seeks to influence the two defendants in any way.  In considering whether to extend the time for service, regard must also be had to the question whether any delay in service would cause prejudice to the defendants, in particular, prejudice to the preparation of their defence.  The plaintiff is not obliged to serve these proceedings until mid-November 2007.  On present estimates, the trial will conclude just before Christmas 2007.  If an order is made extending the time for service until 18 January 2008, the time for service will be extended by a period of two months only.  It is very unlikely that an extension of two months will cause any prejudice to the defendants.  For that reason, I am prepared to extend the time within which the proceedings may be served and an order will be made to that effect.

17. The publication of these reasons has a real potential to prejudice the order I have made.  I will also order these reasons will not be published until after the trial of the plaintiff in the criminal court has concluded.