ESB v Victoria - [2010] VSC 479

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PERSONAL INJURIES LIST
PRACTICE COURT

ESB	Plaintiff
v
STATE OF VICTORIA AND OTHERS	Defendants

---

JUDGE:	KYROU J
WHERE HELD:	MELBOURNE
DATES OF HEARING:	20 October 2010
DATE OF JUDGMENT:	26 October 2010
CASE MAY BE CITED AS:	ESB v Victoria
MEDIUM NEUTRAL CITATION:	[2010] VSC 479

---

PRACTICE AND PROCEDURE – Suppression order – Application by proposed plaintiff to use pseudonym rather than his name – Allegations of rape and other sexual and physical abuse – Whether circumstances justify use of pseudonym – Supreme Court Act 1986 (Vic) ss 18, 19 – Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 5.07.

---

APPEARANCES:	Counsel	Solicitors
The Plaintiff	–	Ms E Anderson, Melbourne Injury Lawyers Pty Ltd
No appearance for the Defendants

HIS HONOUR:

On 20 October 2010, the proposed plaintiff made an oral application without notice in the Practice Court seeking an order enabling him to commence and to continue a proceeding using a pseudonym. He also sought orders prohibiting the publication of any material that would identify him. On 20 October 2010, I made the orders sought by the proposed plaintiff and stated that I would deliver short reasons on a future date. These are my reasons for those orders, which are set out in the appendix to these reasons.

In the proposed proceeding, the proposed plaintiff would seek damages from the State of Victoria, Menzies Incorporated and The Salvation Army in respect of personal injuries arising out of alleged rapes and other sexual and physical abuse that he suffered while he was in the care of the proposed defendants.

The oral application was supported by an affidavit sworn by the proposed plaintiff’s solicitor. That affidavit exhibited a draft statement of claim and reports from the proposed plaintiff’s psychologist and general medical practitioner.

The draft statement of claim alleges that, at the age of one, the proposed plaintiff was removed from the care of his biological parents and was made a ward of the State. Between the ages of three and fourteen, he was placed in the care of a boys’ home that was operated by Menzies Incorporated. Between the ages of fourteen and fifteen, he was placed in the care of a reformation centre that was operated by The Salvation Army. It is alleged that, at both the boys’ home and the reformation centre, he was raped and sexually abused by other boys. It is also alleged that, while he was at the boys’ home, he was raped by the house master and physically abused by other staff.

The proposed plaintiff is now 75 years of age and lives in a small rural community in Victoria.

The reports from the proposed plaintiff’s psychologist set out the psychological impact on the proposed plaintiff of the alleged rapes and other abuse. The reports state that the proposed plaintiff suffers from moderate depression, mild anxiety, low self-esteem and a distrust of people. As a youth, he…

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 ESB v Victoria

Details

AGLC: ESB v Victoria [2010] VSC 479
Case: [2010] VSC 479
Decision Date: 26 October 2010

CaseChat Overview and Summary

In the case of ESB v Victoria, the applicant sought to bring a proceeding against the defendant in the Supreme Court of Victoria, under a pseudonym due to the sensitive nature of the allegations. The applicant, ESB, alleged that he was a victim of serious crimes including rape and other forms of sexual and physical abuse. The defendant, Victoria, was represented by the Attorney-General of the State of Victoria. The central legal issue before the court was whether the circumstances warranted the use of a pseudonym by the applicant instead of his real name in the proceedings.

The court examined the statutory framework provided by sections 18 and 19 of the Supreme Court Act 1986 (Vic), as well as rule 5.07 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic). The court considered the potential for significant harm to the applicant if his identity were disclosed, including the risk of further victimisation, intimidation, and distress. The court also weighed the public interest in the open administration of justice against the applicant’s right to privacy and protection from harm. After careful consideration, the court concluded that the circumstances did justify the use of a pseudonym to protect the applicant's identity.

The court granted the application for the use of a pseudonym, recognising the severe nature of the allegations and the potential harm to the applicant if his identity were to be disclosed. The court determined that the benefits of allowing the use of a pseudonym outweighed the disadvantages of not disclosing the applicant’s true identity. The court issued a suppression order under the relevant provisions of the Supreme Court Act and the Rules, enabling the applicant to proceed with the litigation under a pseudonym.

Orders