EFG (a pseudonym) v Trnka & Anor (Ruling)
[2024] VCC 1882
•26 November 2024 27 November 2024 (Reasons for Ruling revised in accordance with the principles in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 388 ALR 257)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
DEFAMATION LIST
Case No. CI-24-06050
| EFG (A PSEUDONYM) | Plaintiff |
| v | |
| ANNA TRNKA | First Defendant |
| SNOW AUSTRALIA LIMITED (ACN 063 859 423) | Second Defendant |
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JUDGE: | HER HONOUR JUDGE MANOVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 and 25 November 2024 | |
DATE OF RULING: | 26 November 2024 27 November 2024 (Reasons for Ruling revised in accordance with the principles in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 388 ALR 257) | |
CASE MAY BE CITED AS: | EFG (a pseudonym) v Trnka & Anor (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1882 | |
REVISED REASONS FOR RULING
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Subject:PRACTICE AND PROCEDURE
Catchwords: Plaintiff’s application to continue defamation proceeding by pseudonym and for two witnesses to remain de-identified – limited publication to date – administration of justice – principle of open justice – public interest – necessity of order
Legislation Cited: Judicial Proceedings Reports Act1958 (Vic), ss4(1A) and 4(1B);
Civil Procedure Act2010 (Vic), s47Cases Cited:AX v Stern [2008] VSC 400; BY v Australian Red Cross Society (Unreported, Supreme Court of Victoria, Vincent J, 31 October 1991); ABC v D1 & Ors; Ex-Parte The Herald and Weekly Times Limited [2007] VSC 480; John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465; John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131; Witness v John Marsden & Anor [2000] NSWCA 52; Secretary, Department of Justice and Regulation v Zhanyu Zhong (No 2) [2017] VSCA 19; XBA (ex parte) [2019] VSC 49; XYZ v State of Victoria & Anor [2016] VSC 339; TTT & JJJ v State of Victoria [2013] VSC 162
Ruling: Plaintiff’s application granted.
Plaintiff and two witnesses to be de-identified and referred to by pseudonym only.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms G L Schoff KC with Mr N Petrie | Elit Lawyers Pty Ltd |
| For the First Defendant For the Second Defendant | Mr M Stanarevic (Solicitor) Mr T J Mullen with | Matrix Legal Pty Ltd Lex Sportiva |
HER HONOUR:
Introduction
1The plaintiff, EFG,[1] seeks an order the he continue a proceeding for defamation against the defendants under a pseudonym, and that two witnesses nominated in the statement of claim also be de-identified. In essence, the purpose of the application was said to be to protect the plaintiff’s reputation, which is the subject matter of the litigation.
[1]A pseudonym generated by the Court upon granting the plaintiff’s application for a pseudonym, as reflected in the Orders of the Court dated 26 and 27 November 2024.
2The application is opposed by both defendants who emphasised open justice and the plaintiff’s position, that he would not be deterred from pursuing his claim, if the orders were refused.
3The plaintiff is an instructor working with children and young people at an elite level. He is also studying to be a primary school teacher.
4The first defendant is also a coach of young elite athletes and employed or contracted to the second defendant.
5Based on the pleadings currently filed by the plaintiff and first defendant, the defamation proceeding concerns an alleged imputation that the plaintiff had engaged in sexual misconduct with a minor in his care (“the imputation”).[2] Further, that the second defendant is liable because it failed to adequately investigate the plaintiff’s complaints about the matter and it failed to comply with its own whistleblower policy.
[2]Statement of Claim dated 17 October 2024 at paragraph [12]
6The first defendant denies that any statements made by her were defamatory or carried the alleged imputation. The pleading also provides that she reported factual matters only, which had caused her to have “child safety concerns” and that the plaintiff was breaching “child safe practices”.[3]
[3]Defence dated 20 November 2024 at paragraph [18a]
7As at the date of this Ruling, there is no defence filed on behalf of the second defendant.
8The application is on summons and supported by an affidavit sworn by the plaintiff on 17 October 2024. The application was heard on 1 November 2024.
9During the hearing, the Court queried whether, if a pseudonym order was made, all parties should be de-identified to give effect to that order.
10The first defendant’s solicitor strenuously objected to that course. The hearing was adjourned part-heard to enable the first defendant to provide relevant material in support of any application to retain her own name in the proceeding so that she may be able to undertake crowdfunding to defend the claim. Further, leave was given to the plaintiff to amend its summons dated 17 October 2024 and file any material in reply. Leave was also given to the second defendant to file any material in reply.
11In support of her application to remain identified in the proceeding, the first defendant filed two affidavits, one made by her on 15 November 2024 and the other made by one of her students on 14 November 2024.
12The plaintiff filed an amended summons dated 22 November 2024 seeking an order that the persons identified as “M” and “D”, in paragraph 4 of the Statement of Claim, remain de-identified and referred to by those pseudonyms.
Evidence
13In his affidavit, the plaintiff deposed to the following relevant matters:
(a) he runs his own business conducting training sessions for young athletes – ranging in age from 7 to 20 years old;
(b) he is undertaking a bachelor’s degree at a university in Melbourne which he will finish by the end of 2025 and which he anticipates will qualify him to be a primary school teacher;
(c) the alleged defamatory statements have hitherto been restricted to persons within a small sporting community. Reporting of the allegations in the media could vastly increase the size of the pool of people to whom the defamatory statements are published. This would further aggravate the damage caused to his reputation;
(d) he is concerned that in seeking to vindicate his name, he risks other potential damage to his reputation arising from the effect that media reporting can have on his future employment prospects and place him at risk of having to explain about the allegations in both a professional and personal capacity, for years to come, even if he is ultimately vindicated. This prospect caused him significant distress; and
(e) a key witness in this proceeding (identified only as D) was 16 years old at the time of the events in question and trained with him as part of his coaching business.
14In her affidavit, the first defendant deposed to the following relevant matters:
(a) she is of limited means and proposes to seek crowdfunding to raise sufficient funds for her legal fees;
(b) a pseudonym order as sought by the plaintiff would significantly hinder her ability to gather potential witnesses and evidence which may be crucial to her defence; and
(c) a pseudonym order (de-identifying her) would severely prejudice her ability to engage in such crowdfunding.
15The affidavit of the student is of limited assistance on the question whether a pseudonym order should be made as it focuses on alleged events within the sporting community and alleged “rumours”.
Submissions of the parties
16The basis of the application is in effect that any publicity identifying the plaintiff by name in the proceeding would by itself cause damage to his reputation. Senior counsel for the plaintiff further submitted that if this was a case dealing with defamatory comments which had already been reported in the newspapers, this application would not have been made.
17The following submissions, directed to the criteria required to be applied, were made on behalf of the plaintiff:
(a) the administration of justice is here concerned with the protection of the plaintiff’s reputation;
(b) making the orders sought would involve minimal interference with open justice;
(c) the sporting community in which these events occurred is small and it would be possible to identify D, who is said to be the subject of the imputation of sexual misconduct;
(d) to date, publication of the alleged defamatory statements has been limited to the sporting community in which the events occurred. Failure to make the order would make it almost certain that the whole purpose of the litigation would be lost as even fair media reporting would bring attention of the allegations to a much wider audience;
(e) potentially, even if the plaintiff’s reputation is vindicated in a judgment, it is possible that media articles containing the allegations remain online to be accessed by any future prospective employer who may be wary of hiring the plaintiff if he has been so much as the subject of such allegations in the past;
(f) identifying the plaintiff in the proceeding will exacerbate the psychological impact occasioned by the imputation that he has engaged in sexual misconduct with a minor in his care; and
(g) refusal to make the order might result in others in similar circumstances from being discouraged to seek vindication of their reputation, if bringing proceedings and the associated risk of reporting in the media, might amplify the damage.
18The first defendant argues that the plaintiff has failed to establish “exceptional circumstances”, that his claims for reputational damage are common concerns for many litigants which do not amount to “exceptional circumstances”, and that the pseudonym orders have no utility because some reporting would still be possible. The first defendant relied on the analogy with disciplinary proceedings where no pseudonym orders are made in support of her position.
19The second defendant argues that there is no proper evidentiary basis for the order sought and making the order would effectively open the floodgates to similar applications being made in future. In particular, counsel for the second defendant said:
(a) the plaintiff must establish that the publication has caused or is likely to cause “serious harm” to the plaintiff’s reputation. At the moment, only a small number of people could be said to have received the publication of the alleged defamatory words and so serious harm cannot be established;
(b) the real test is whether the order “is necessary for the proper administration of justice”;
(c) judicial notice can be taken of the fact that a defamation plaintiff might be concerned with reporting;
(d) there is not a sufficient pubic interest in de-identifying the plaintiff;
(e) damages are the traditional remedy for damage to reputation and the Court would be “stepping out on a limb” to make the orders sought by the plaintiff; and
(f) any orders de-identifying the two witnesses are not necessary as it is accepted by all parties that any misconduct was not sexual, and in any event, their identities would be protected by the Judicial Proceedings Reports Act 1958 (Vic) (“JPRA”).
20It was not in dispute between the parties that this Court has power to make the orders sought.
Legal principles
21Pursuant to s47 of the Civil Procedure Act 2010 (Vic), this Court has power to make the orders sought for the purposes of ensuring that the proceeding is conducted in accordance with the overarching purpose of that Act, and may make any order it considers appropriate “including any directions, in the interests of the administration of justice”.[4]
[4]Pursuant to s47(1)(a) of the Civil Procedure Act 2010 (Vic)
22In AX v Stern (“AX”)[5], Warren CJ cited with approval a decision of Vincent J, BY v Australian Red Cross Society & Others[6] which stated the general principle of open justice:
“…as a general rule, the courts of a democratic community must remain open to the scrutiny of its citizens. Clearly there will be circumstances in which through the operation of some supervening principle this will not be possible. The existence of a significant risk that some other value encompassed by the concept of administration of justice may be prejudiced, can provide such circumstance and may on occasions require a court to direct that there be a departure from the ordinary approach. Consistent with the operation of this principle there are the requirements that the courts must carefully scrutinise any application to prohibit publication of proceedings in whole or in part and that no such orders be made unless it is clearly necessary”.[7]
(Emphasis added)
[5][2008] VSC 400
[6](Unreported, Supreme Court of Victoria, Vincent J, 31 October 1991)
[7]AX at paragraph [5]
23The parties agree that the relevant considerations which apply to this application are set out in ABC v D1 & Ors; Ex-Parte The Herald and Weekly Times Limited[8] (“ABC”).
[8][2007] VSC 480
24In ABC, Forrest J considered the authorities and distilled the following seven principles:
“First, that the principal rule is that judicial hearings should take place in open court: publicly and in open view, with no restriction on reporting. This is a fundamental precept underpinning the administration of justice.
Second, that in certain circumstances the administration of justice requires a qualification of the general rule. There will be circumstances where modifications of the general rule are necessarily made to ensure that the administration of justice is not frustrated. These exceptions are many and varied and cannot be prescriptively identified.
Third, that the test to be applied by the court in making a pseudonym order is, to use the words of the statute, whether it is necessary to do so in order not to prejudice the administration of justice. (emphasis added)
Fourth, that a court, in determining whether to make a pseudonym order, is entitled to take into account the individual considerations affecting the person seeking the order and balance those against the principal rule of open justice in determining whether the administration of justice warrants the making of the order. Relevant to these individual considerations is whether there is a real risk of the party or witness suffering psychological harm as a result of publication of his or her name or the names of other parties. Also relevant is the real risk of a party not proceeding with an action in the event that he or she or another person is identified.
Fifth, that in certain circumstances, particularly those involving sexual assaults, it may be appropriate not only to suppress the name of the plaintiff but also to suppress the name of the defendant or defendants.
Sixth, that in determining whether to make such an order, a court is entitled to take into account the fact that there will still be a reporting of the proceeding and that the hearing itself will be conducted in open court, subject to the restrictions imposed by the pseudonym order.
Seventh, in determining whether it is necessary to make such an order, usually the proofs must be cogent and will not be satisfied by mere belief on the part of a party that the order is necessary. However, in certain cases a court can, in a practical sense, act on its own experience and draw appropriate inferences”.[9]
(Emphasis added)
[9]Ibid at paragraphs [65] to [71]
25His Honour said that the correct test for necessity is whether the order was “really necessary”.[10]
[10]Ibid at paragraph [50], citing McHugh JA in John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465
26Significant to the issues raised in this application, his Honour referred to the decision in John Fairfax Group Pty Ltd v Local Court of New South Wales[11] (“Local Court”), which is long standing authority dealing with the question of freedom of speech, open justice and free publication of court proceedings.
[11](1991) 26 NSWLR 131
“Considerable assistance is gained, in my view, from the decision of the majority in Local Court (Mahoney JA with whom Hope AJA agreed, Kirby P dissenting) - a pseudonym case. Having acknowledged the importance of freedom of speech and the open conduct of the courts, Mahoney JA then stated:
“They stand high in the order of importance. But, in my respectful opinion, the reiteration of them does not solve the present issue. What is here in question is the damage which is done to individuals by, in this case, the free publication of court proceedings and how to deal with it.”
Mahoney JA went on to say:
“First, it is important to remember – because, in what is said about the open conduct of the courts, it appears sometimes to be forgotten – that the open conduct of the courts can cause great pain and loss to those touched by what is done and what is publicised. It is, in my opinion, the function of the law – and the obligation of the courts that are administering it – to avoid such pain and loss to the extent that it is possible to do so. To the extent that this detriment to the individual is not avoided, the law is deficient and the courts have been less than fully effective.”
Secondly, the assumption which, I think, sometimes emerges from what is urged for the open conduct of courts is that that principle is to be upheld and the right to publish is to be unrestricted notwithstanding that the individual suffers for it. If this assumption underlies the submissions made in the present proceeding, it is an assumption which I would not accept ... the power which the community gives to any person, whether he be in Parliament, an official in government, or a judge is to be exercised properly and accountably. And, it is believed, that will be achieved if the power is exercised, as in the present case, in open court and subject to full publicity.
But that is not a unalloyed panacea. Experience has shown that open courts and unrestricted media publicity produce bad as well as good consequences: the principle is adopted, not because it is an unalloyed panacea, but because it is the least worst method of securing the proper exercise of judicial power and accountability for it.
Thirdly, it is for these reasons proper to consider whether and in what way the open court principle can be maintained without unacceptable detriment to individuals and the proper administration of justice”.[12]
(Footnotes omitted and emphasis added)
[12]ABC at paragraphs [53] to [54]
27The community has an interest in the open administration of justice. However, as Kirby P said in Local Court (as cited by Forrest J in ABC):
“…The common justification for these special exceptions is a reminder that the open administration of justice serves the interest 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 … the rule of openness must be modified to meet the exigencies of the particular case …”[13]
[13]ABC at paragraph [34]
28In Witness v John Marsden & Anor[14], Priestley JA said that a relevant factor in considering applications of this kind is that:
[14][2000] NSWCA 52
“…the obligation of the courts to do justice in particular cases carried with it full powers in courts “to do whatever is necessary to achieve a just result in a case before it”, which power had to be used “with the most careful discretion”.
…
In the present case it seems to me that the making of a pseudonym order is likely to improve the chances of a just result being reached at the trial to an extent that significantly outweighs the small inroad the order will make upon the very powerful ideal of fully open trials”[15]
and
“It should be noted that the test applied in Levine J’s Judgment were those stated in paragraphs [16] and [27]. Those tests were that the fears held by the Witness must be genuine: there must objectively be reasonable grounds for them: and it must be the case that the ends of justice would be defeated by the denial of the pseudonym, so that a pseudonym was necessary to avert an outcome….”[16]
(References omitted and emphasis added)
[15]Ibid at paragraphs [13] and [17]
[16]Ibid at paragraph [114]
29In Secretary, Department of Justice and Regulation v Zhanyu Zhong (No 2)[17] (“Zhong”), the Court of Appeal[18] said:
“…mere embarrassment, distress or invasion of privacy in insufficient to warrant the making of a pseudonym order. …
…
…each case must be determined on its own facts. Little, if anything, can be taken from the fact that pseudonym orders have been made in other cases. …”[19]
[17][2017] VSCA 19
[18]Santamaria, Ferguson and McLeish JJA
[19]Zhong at paragraphs [9] and [11]
30In XBA (ex parte),[20] Ierodiaconou As J cited some authorities dealing with recognition by the common law of categories of cases, in which pseudonym orders are generally made to prevent prejudice to the administration of justice and where it is desirable to protect the safety of persons who are litigants or witnesses in those proceedings.
[20][2019] VSC 49
31Those categories are:
“…
(a) when the plaintiff would reasonably be deterred from bringing proceedings without a pseudonym order;
(b) when the defendant would reasonably be deterred from defending proceedings without a pseudonym order;
(c) cases involving sexual offences; and
(d) cases involving children.
…”[21]
[21]Ibid at paragraph [7], citing XYZ v State of Victoria & Anor [2016] VSC 339 (“XYZ”) (T Forrest J)
32In XBA (ex parte), her Honour referred to the following statement (pertinent to the issues raised in this proceeding) made by T Forrest J in XYZ:
“…Finally, a pseudonym order will not preclude media reporting of the proceeding. Directions hearing and the trial itself will be conducted in open court. The extent of interference with the principles of open justice that is likely to be occasioned by this order is minimal and I am satisfied that the proper requirements for the administration of justice warrant the making of the order”.[22]
[22]XBA (ex parte) at paragraph [16]
33Where children are litigants or witnesses, the Court is required to consider whether special arrangements ought to be made to protect their privacy and in some jurisdictions, for the way they give their evidence.
34In TTT & JJJ v State of Victoria,[23] Cavanough J considered an application by minors through a litigation guardian to commence common law proceedings for damages under pseudonym.
[23][2013] VSC 162
35His Honour said the following, which is relevant to the issues raised by the plaintiff in this case:
“…The courts have always been alert to protect the interests of children whose affairs come before them, including, often, their interest in privacy. The general protection of children has also been a major concern of the legislature. Some statutory provisions explicitly protect the privacy of children involved in specified court or tribunal proceedings”. …[24]
(Footnotes omitted)
[24]Ibid at paragraph [21]
Analysis
36Defamation can cause serious harm to a person’s reputation. It can have ramifications for their ability to obtain and retain employment, conduct business, get married or maintain their good social standing in their community. A defamation proceeding may also determine whether a defendant was appropriately engaging in free speech or appropriately raising issues of concern or importance.
37The defendants argue that it would be very unusual for the Court to grant the application sought, as it is not the type of order usually made in defamation proceedings.
38The second defendant also argues that the plaintiff’s remedy, if there is to be one, is to be found in damages, and is not to be pursued under cover of a pseudonym because that is not the convention in the jurisdiction.
39I accept the second defendant’s submissions about the convention in defamation proceedings. The cases to which the parties referred largely dealt with defamation proceedings which had been commenced after media reporting alleged to be defamatory. In such cases, it may be well considered by plaintiffs that it is necessary to have the fact of the proceedings as public as possible because they had already been publicly defamed. Pseudonym orders could be counter-productive in such circumstances.
40This case is different. The plaintiff seeks to vindicate only the damage done to his reputation so far. That damage currently exists among the members of a small sporting community. He seeks specifically to avoid more damage by any reporting of the proceedings in the media.
41In the circumstances of this case, I consider the administration of justice is concerned with providing a fair trial not only to the plaintiff but also to the defendants.
42The imputation alleged by the plaintiff is that he had engaged in “sexual misconduct” with a minor in his care. Both defendants dispute that the facts of the case could amount to this. That will ultimately be a matter for the trial.
43In her defence, the first defendant has raised issues that she held “child safety concerns” in the context of alleged breaches by the plaintiff of “child safe practices”.[25]
[25]Defence dated 20 November 2024 at paragraph [21]
44This is a case about an elite sports trainer (one who is also in training to be a primary school teacher) and his alleged conduct with a young athlete under his care or supervision. I consider that these matters make the proceeding one which is likely to arouse the interest of the media, as it relates to an issue of importance to the public.
45There are therefore two important questions which arise.
46The first is whether prior to any determination, the plaintiff’s reputation ought to be subjected to the real risk of further damage by media reporting of his attempts to vindicate it.
47The second is whether the defendants should be exposed to the risk of having to pay higher damages on account of the publication of the defamatory statements to a wider audience, by the fair reporting of the proceedings in the media.
48The reasoning in Local Court is apposite to both questions. That reasoning underscores two important principles.
49The first is the principle that open justice is not an end in itself. The Court must recognise that open conduct of its proceedings (and associated reporting in the media) can cause significant detriment to participants. In the context of the plaintiff’s case, that detriment would be further damage to his reputation. In the context of the defendants’ positions, that detriment would be the risk of liability to pay higher damages, due to dissemination to a wider audience.
50The second is the principle that open justice can be maintained without unacceptable detriment to individuals and to the administration of justice.
51Aside from reliance on the open justice principle and on the need to satisfy the test, the defendants have pointed to no other consideration why the plaintiff’s name should be revealed. In particular, no prejudice has been identified.
52I now turn to the second defendant’s argument about whether the plaintiff’s proceeding satisfies the requirement of “serious harm”.
53Although that is a point for a different application, it seems to me almost inevitable that if the imputation alleged is reported more widely, the requirement of serious harm would be more readily made out than at present.
54Perhaps that argument illustrates the point of the plaintiff’s application.
55I reject the argument that there is no public interest in de-identifying the plaintiff. On the contrary, I consider there is a public interest in the protection of reputation until a determination to the contrary is made by a court of law.
56Turning now to the individual considerations affecting the plaintiff. He is a young man carrying on a business of training children and young people who are elite athletes and is in training himself to be a primary school teacher.
57Sexual abuse and inappropriate conduct by adults, with children and young people in their care, is of great concern in our community. The social climate in which this proceeding arises is one in which there is an intense media focus on the reporting of proceedings concerning such conduct. Adults who have care and supervision of children are charged with significant responsibility and any allegation of abuse of that responsibility attracts media attention.
58I can understand the plaintiff’s concern that schools who are hiring new teachers may be apprehensive about hiring a person whose name was once associated with such imputations, even if they were subsequently vindicated. That would be a legitimate concern of anyone in his position.
59I accept the submission made on behalf of the plaintiff that any reporting of his name in association with the imputation could have lasting effects, even if he is ultimately successful in this proceeding. I accept that “mud sticks”, as his senior counsel described it.
60I consider the administration of justice would be significantly prejudiced if the plaintiff, in exercising his right to pursue vindication of his reputation, risks causing further damage to it.
61I accept the submission that the pseudonym order will preserve the subject matter of the litigation, the plaintiff’s reputation.
62Unless and until such a time as a finding of fact is made to the contrary, I consider no potential further damage ought to be inflicted on his reputation by the significant risk of media reporting of the proceedings.
63Kirby P’s statement in Local Courts is apposite here:
“If the very openness of court proceedings would destroy the attainment of justice in the particular case. …The rule of openness must be modified to meet the exigencies of the particular case”.
64I take into account the fact that any pseudonym order will not inhibit the reporting of the proceeding and that the hearing itself will be conducted in open court. While there is an important public interest in the free and open reporting of proceedings, I do not consider that that extends to reporting of the names of all parties. There can be little value in that to the public. It could well be concerned with the subject matter of the proceeding but, save for morbid curiosity, can have no legitimate concern with the name of the plaintiff.
65This brings me to the question of whether the identity of D, who is a witness and was 16 years old at the time of the events in question, ought to be protected from public disclosure.
66On the current pleadings, D and her mother M will be material witnesses in the proceeding. Hitherto, they have not been identified by name, but the parties know their names.
67The pleadings provide that D was at a sports training camp at the same time as the plaintiff. The first defendant noticed that D and the plaintiff were absent from a camp meeting. Following this meeting, the first defendant is said to have made complaints to the second defendant and intimated to M that something inappropriate had occurred between the plaintiff and D, while they were both absent from the meeting.
68The second defendant’s position is that no sexual misconduct allegations have been made, no report to police has been made and in any event, the JPRA would prevent the reporting of the names of D and M.
69I do not accept that submission. I do not consider, on the basis of the evidence before me, that the JPRA provides any protection for the witness D from being identified. That is because the parties agree that no report of any sexual offence has been made to police.
70Section 4(1A) of the JPRA provides that:
“A person who publishes or causes to be published any matter that contains any particulars likely to lead to the identification of a person against whom a sexual offence is alleged to have been committed is guilty of an offence, whether or not a proceeding in respect of the alleged offence or offence has been commenced, is being conducted or has been finally determined”.
71Section 4(1B) of the JPRA provides that:
“Subsection (1A) does not apply if no complaint about the alleged offence has been made to a police officer”.
72Therefore, if no report has been made to police, s4(1B) excludes the protection offered by s4(1A).
73The issue in the case will be whether the imputation carries the meaning as pleaded.
74It is not to the point that no sexual assault allegations were expressly made by the first defendant, nor that no sexual assault complaints have been made by D.
75The point is that the plaintiff will seek to have the Court decide whether the imputation carries the meaning of the plaintiff having engaged in sexual misconduct with D, a minor in his care.
76In the circumstances, I consider allegations are likely to be raised in the proceeding that D was the subject of possible misconduct, which carries a sexual connotation.
77I therefore consider D ought to be de-identified, even if her circumstances cannot be said to neatly fall within the recognised four categories set out in XYZ.
78My reasons are as follows:
(a) while it is not currently pleaded that any actual sexual contact occurred between the plaintiff and D, she was only 16 years old and the imputation the subject of the proceedings is that she was involved in a circumstance of sexual misconduct by the plaintiff;
(b) the first defendant’s defence pleads D was exposed to a risk of misconduct and unsafe child practices;
(c) D is not seeking any damages, she is a witness. Having accepted the analogy of senior counsel that “mud sticks”, I consider it applies equally to D. It would bring about a substantial unfairness to her if she is publicly identified by name in the media reporting of a proceeding alleging some kind of sexual misconduct with her as minor; and
(d) it follows that the identity of M ought to be protected as it may lead to the identification of D.
79Finally, I reject the argument made on behalf of the first defendant that the evidence of the plaintiff is insufficient to meet the criteria. On the contrary, I consider it provides cogent proof because of the peculiar circumstances in which this application is being made.
80Neither the first or second defendant challenged the contents of the affidavit. I accept his evidence that currently only a select group of people are aware of the alleged damaging comments and that refusal to make the order gives rise to a real risk of media reporting and significantly wider dissemination.
81While there has been no specific evidence that media reporting of the proceedings may remain on the internet for years to come, I consider I can use my own experience and can take judicial notice of the social climate in which the conduct of adults charged with the care and supervision of children is publicly scrutinised. That is common knowledge. A person applying to be a primary school teacher in today’s climate faces the real risk that potential employers may resort to internet research and may be cautious about employing a person associated with such allegations, even if they had been subsequently vindicated.
82The role of a court is to quell controversies, not create new ones. I consider that the orders sought by the plaintiff in his amended summons are likely to improve the chances of a just result being reached in the trial for all parties. In particular, I consider they are really necessary to avoid interference with or prejudice to the proper administration of justice.
83The position of the first defendant and her ability to seek crowdfunding will not be prejudiced by the orders I make. Providing there is no breach of the orders, any crowdfunding efforts can proceed unimpeded.
84I will make the orders operative “until further order”. If a judge or judges who subsequently hear this matter form a different view, they will make appropriate orders reflecting that view. Doubtless, at the conclusion of the proceeding, the order will be lifted regardless of the outcome.
85I have heard the parties as to the form of consequential orders, including such orders as are necessary to enable the defendants to prepare their defence and interview witnesses, and have made orders as agreed by all parties.
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