ESB v Victoria
[2010] VSC 479
•26 October 2010
| 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 |
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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 | |
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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.
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| 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 engaged in some criminal activity. In the 1950s, he had attempted suicide on three occasions. For some of his adult life, the proposed plaintiff was a homosexual, but he later married and had children. He experiences fear and guilt about his past.
The most recent report of the psychologist concludes that the publication of the proposed plaintiff’s name in the proposed proceeding ‘would cause him significant psychological distress as such publicity would strike directly at his vulnerabilities and would … have a detrimental effect on his mental health.’
The most recent report from the proposed plaintiff’s general medical practitioner states that, ‘[b]ecause of the homosexual nature of the assaults [the proposed plaintiff] suffered both he and his family may be subjected to criticism, ridicule and discrimination by our country neighbours.’ The report also states that ‘publication of [the proposed plaintiff’s] name in connection with these proceedings [would] be in nobody’s interest, and [would] possibly [be] of great detriment to the family they are designed to assist.’
Sections 18 and 19 of the Supreme Court Act 1986 (Vic) empower the Court to make an order prohibiting the publication of a report of the whole or any part of a proceeding, or any information derived from a proceeding if, in the Court’s opinion, it is necessary to do so in order not to prejudice the administration of justice. These provisions have previously been considered in a number of cases that are similar to the present case, including ANN v ABC (No 1),[1] ABC v D1; Ex parte Herald & Weekly Times Ltd,[2] AX v Stern,[3] Anon 2 v XYZ[4] and XG v Medical Practitioners Board of Victoria.[5]
[1][2006] VSC 348 (19 September 2006).
[2][2007] VSC 480 (30 November 2007) (‘ABC v D1’).
[3][2008] VSC 400 (30 September 2008).
[4][2008] VSC 466 (12 November 2008).
[5][2010] VSC 79 (11 March 2010).
In ABC v D1,[6] Forrest J helpfully reviewed the authorities. His Honour stated that, in cases involving sexual assaults, the courts have regularly made pseudonym-type orders.[7] He distilled from the authorities the following principles that are relevant to such cases:
[6][2007] VSC 480 (30 November 2007).
[7]ABC v D1 [2007] VSC 480 (30 November 2007) [44].
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.
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.[8]
[8]ABC v D1 [2007] VSC 480 (30 November 2007) [65]-[71].
Having regard to the above principles, I had some initial reservations about making the orders that were sought by the proposed plaintiff. These initial reservations were mainly due to the following matters:
(a)The proposed plaintiff did not swear an affidavit in support of the application. Consequently, the Court had no direct evidence from the proposed plaintiff on how he felt about his name being disclosed in the proposed proceeding. Given the Court’s natural reluctance to restrict the open conduct and reporting of proceedings, it would have assisted the Court to have direct evidence from the proposed plaintiff on whether he would be reluctant to commence the proposed proceeding if his name were required to be disclosed and on the impact of such disclosure on him and his family.
(b)There was no evidence from a psychiatrist. In my opinion, a psychiatrist would be best placed to give an expert opinion about the likely impact on the proposed plaintiff’s mental health by the disclosure of his name in the proposed proceeding . The psychologist whose reports were exhibited to the affidavit of the proposed plaintiff’s solicitor was not medically qualified. While the general practitioner was medically qualified, his reports did not state that the disclosure of the proposed plaintiff’s name in the proposed proceeding would adversely affect his mental health.
On balance, however, I have decided that it is necessary to make the proposed orders in order not to prejudice the administration of justice. I am satisfied that public knowledge of the identity of the proposed plaintiff would prejudice the administration of justice because there is an unacceptable risk that it would exacerbate the conditions affecting the proposed plaintiff’s mental health and might deter him from commencing the proposed proceeding. My reasons are as follows:
(a)The alleged rapes and other abuse are of a very serious nature and allegedly occurred regularly during the proposed plaintiff’s childhood. According to the psychologist, the proposed plaintiff has still not fully come to terms with the alleged traumatic events of his childhood and has difficulty discussing those events. In light of these considerations, I accept the psychologist’s opinion that the disclosure of the proposed plaintiff’s name would have a detrimental effect on his mental health.
(b)Although the medical reports do not state, in terms, that the proposed plaintiff would be reluctant to commence the proposed proceeding if his name were required to be disclosed, it is implicit in the reports that this is so. It is also implicit in the affidavit of the proposed plaintiff’s solicitor, where the solicitor states that the proposed plaintiff has instructed her ‘to proceed with a claim … against the proposed defendants subject to the preservation of his anonymity.’ The psychologist’s reports portray the proposed plaintiff as a traumatised individual who is likely to be further traumatised by publication of his name in connection with events which continue to cause him to experience fear and guilt.
(c)The fact that the proposed plaintiff lives in a small rural community means that it is likely that he is known to the members of that community and that those members would take a keen interest in anything that was published about him. I accept the evidence of the proposed plaintiff’s general medical practitioner – who is familiar with the small rural community – that there is a risk that the proposed plaintiff and his family would be subjected to criticism, ridicule and discrimination if his name were required to be disclosed. While embarrassment, distress and invasion of privacy on their own are insufficient to justify a pseudonym-type order,[9] in this case the subjection of the proposed plaintiff to any criticism, ridicule or discrimination is likely to exacerbate any pre-existing mental health problems from which he suffers.
[9]ABC v D1 [2007] VSC 480 (30 November 2007) [42]; Anon 2 v XYZ [2008] VSC 466 (12 November 2008) [15].
As I have made the orders without notice to the proposed defendants, the orders are expressed to have effect subject to any contrary order that may be made. This will enable the proposed defendants to seek a variation of the orders should they be so advised.
APPENDIX
ORDER MADE ON 20 OCTOBER 2010
JUDGE: The Honourable Justice Kyrou DATE MADE: 20 October 2010 ORIGINATING PROCESS: Oral application before commencement of proceeding. HOW OBTAINED: Ex parte oral application in the Practice Court. ATTENDANCE: Ms E. Anderson, Solicitor for the proposed Plaintiff.
No appearance for the proposed Defendants.OTHER MATTERS: 1. Upon reading the affidavit of Katherine Ann Wilson sworn 8 October 2010 (‘Affidavit’) AND upon it appearing to the Court that it was appropriate to order that, if the proposed Plaintiff commences the proposed proceeding, the proceeding need not disclose the name of the proposed Plaintiff.
2. This order is signed by the Judge pursuant to Rule 60.02(1)(b) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic).
THE COURT ORDERS THAT:
1.The proposed Plaintiff is given leave to commence the proposed proceeding referred to in the Affidavit, such leave being limited as follows:
(a)The proposed Plaintiff is not required to be identified by his true name but shall instead be referred to in the writ and the statement of claim filed in the proceeding by the pseudonym ‘ESB’.
(b)The proposed Plaintiff is not required to comply with the requirements of Rule 5.07(1)(a) of the Rules.
2.All documents filed subsequently in the proceeding shall identify the proposed Plaintiff by the reference as set out in 1(a) above, save for the jurat of any affidavit required to be sworn by the proposed Plaintiff.
3.The proposed Plaintiff’s solicitors shall serve upon the proposed Defendants at the time of service of the writ:
(a) a sealed copy of this order; and
(b) written notice of the full name and address of the Plaintiff.
4. Publication is prohibited of any report of:
(a) the hearing of this application;
(b) the contents of the Affidavit and this order;
(c)the writ, statement of claim or any subsequent document in the proposed proceeding or any information derived from any such document; and
(d) the hearing of any interlocutory process in the proposed proceeding,
to the extent only that publication might tend to identify the proposed Plaintiff.
5.The Affidavit and the exhibits to the Affidavit are to be placed on the Court file in a sealed envelope only to be opened on the order of a Judge.
6.Paragraphs numbered 2 to 5 of this order shall have effect unless and until an order is made to the contrary.
7. The costs of this application are reserved.
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