Ex parte
[2015] VSC 331
•9 July 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL DIVISION
S CI 2015 03544
| CHEP AUSTRALIA LIMITED (ACN 117 266 323) | Applicant |
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JUDGE: | BONGIORNO JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 June 2015 |
DATE OF JUDGMENT: | 9 July 2015 |
CASE MAY BE CITED AS: | Ex parte Chep Australia Ltd |
MEDIUM NEUTRAL CITATION: | [2015] VSC 331 |
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PRACTICE AND PROCEDURE – Application for a pseudonym order – Application refused – No point of principle
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Dr O Bigos | HWL Ebsworth Lawyers |
HIS HONOUR:
On 24 June 2015, Chep Australia Limited (‘Chep’) made an oral application in this Court seeking, ex parte, orders to suppress the identity of a certain person, referred to only as the ‘Agent’. The Agent is said to be a potential witness in proposed litigation by Chep against two other companies, Spiroski Unloading Services Pty Ltd (‘Spiroski’) and Mobil Equipment Hire Pty Ltd trading as East End Hire (‘East End Hire’). The proposed originating motion also sought an order that an affidavit sworn by a Chep employee concerning the Agent remain confidential.
Apart from the affidavit referred to, the originating motion was also supported by two other affidavits, for which confidentiality is not sought, sworn by Chep employees, which explain relevant aspects of Chep’s business and alleged illegal depredations on that business perpetrated by Spiroski and East End Hire. Those affidavits described Chep’s business activities, which include the hiring of wooden and plastic pallets to various other business operators for use in the movement and storage of various products.
In about May 2014 Chep retained an unnamed security investigation firm to identify companies or individuals Chep suspected of selling its pallets at the Melbourne Wholesale Fruit, Vegetable and Flower Market and to attempt to verify this activity by purchasing Chep pallets from those companies or individuals. The investigation is said to have been carried out by the Agent, who was himself engaged or employed by the security investigation firm. In the course of his investigation, between about May 2014 and April 2015, the Agent ‘bought’ pallets belonging to Chep for cash from those companies on numerous occasions, thus exposing what is described as a ‘black market’ trade in Chep’s pallets. It is in respect of this activity that Chep proposed to bring proceedings for injunctive relief against Spiroski and East End Hire. However, on this application counsel for Chep informed the Court that the Agent would refuse to give evidence of his dealings with the prospective defendants unless his identity were concealed and that Chep would not bring such proceedings unless an order so concealing his identity were made. The Agent’s and Chep’s reasons for taking these positions are purportedly explained in the affidavit, already referred to, for which confidentiality is sought. Although, as explained hereunder, there are serious deficiencies in this affidavit, there are parts of it that justify its remaining confidential, at least for the present. That notwithstanding, to explain the conclusion I have reached as to this application it is necessary to refer to that affidavit and its contents, at least generally.
The confidential affidavit was not sworn by the Agent, but by a Chep employee who says he has been informed ‘on behalf of the Agent’ by an unidentified person of certain matters which have led him to believe that the Agent will not give evidence in any proceeding concerning his dealings with Spiroski and/or East End Hire. The affidavit proceeds to describe, in the most general of terms, what are said to be concerns of the Agent (presumably also recounted to the deponent by an unidentified third party) that, if his identity were revealed in the proposed proceeding, he may suffer physical harm from persons he has previously investigated, that other investigations in which he is engaged will be compromised and/or that his future income as an ‘undercover agent or private investigator’ may be significantly reduced.
No explanation is given as to how or why any connection would or might be made between any past or present activities of the Agent and the evidence of his dealings with Spiroski and East End Hire. No explanation is proffered as to why a previous subject of investigation by the Agent would have a motive to do him harm arising out of his now giving evidence against someone else. Nor is there any explanation as to why the Agent was employed to collect evidence against the contemplated defendants over almost a year when he would refuse or try to refuse to give that evidence in Court if called upon to do so without a pseudonym order. The affidavit consists largely of bald assertions of fear of various consequences on the part of the proposed witness without any adequate justification for those assertions. Further, they are attested to, not by the Agent, but by an employee of the proposed plaintiff on information derived from an unidentified source or sources, not the Agent.
Counsel for the applicant referred to a number of cases where plaintiffs had sought and been granted leave to institute proceedings using a pseudonym. One of these cases was a decision of J Forrest J of this Court, ABC v D1; Ex parte the Herald and Weekly Times Ltd,[1] in which his Honour put forward a number of principles applicable to pseudonym orders. In doing so he concluded by saying:
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.[2]
In this case the proofs offered could in no way be described as cogent.
[1][2007] VSC 480. See also TTT v Victoria [2013] VSC 162, [18] (Cavanough J).
[2]Ibid [71].
In his argument, counsel for Chep submitted that if the Court refused a pseudonym order the processes of justice would be frustrated because Chep would not bring the contemplated proceeding. But the Agent is subject to the ordinary coercive processes of the Court. No explanation has been proffered as to why such processes would be inadequate in this case. He can be required to give evidence by subpoena, upon the return of which he will be able to make appropriate application, whether for a pseudonym order or otherwise, to the trial judge.
After the hearing, the solicitor for the applicant took the unusual course of sending a letter to the Court by way of email, seeking to draw the Court’s attention to Witness v Marsden.[3] The Court was referred to paragraphs [3], [125] and [144] of that judgment in particular. In the first of those paragraphs, Mason P observed that the making of a pseudonym order involves a public interest factor, namely, it may further the interests of justice by encouraging other witnesses to come forward to give relevant testimony.[4] But there was no evidence before the Court that that was ever likely to occur in this case.
[3](2000) 49 NSWLR 429.
[4]Ibid 431.
At paragraph [125], Heydon JA referred to the ‘risks faced by those who give information to police, whether they do so as professional informers or merely do so in isolated instances’.[5] It was not explained how this observation might assist the applicant in this case. His concerns seem to be related to other activities at other times.
[5]Ibid 456–7.
In the third paragraph referred to above, Heydon JA said:
It is necessary that there be a minimalist interference with open justice to the extent of pseudonym orders in favour of the Witness. That is because without them the Witness reasonably fears death or physical injury, or alternatively an unnecessary loss of liberty. These are evils which it is necessary to avoid by that degree of minimalist interference. Without the orders, the Witness is exposed to hurt, and the party calling him is faced with the risk of testimony proceeding from a person who is reluctant, but in a particular sense. Many witnesses, as the plaintiff pointed out, are reluctant, but few are reluctant because of fears for their lives, safety or liberty.[6]
This passage rather militates against the grant of a pseudonym order in this case. There was no evidence in support of the assertion that the Agent might suffer death, physical injury or unnecessary loss of liberty, or some other consequence of comparable magnitude, if the order were not made. Much less was there any evidence that any fear he might have expressed to someone was reasonably held.
[6]Ibid 461.
Even if the information contained in the confidential affidavit had sufficiently described the situation of the Agent so as to raise an argument that his identity should be suppressed, the question arises as to why such an order should be made at this stage. No proceeding has been issued against the proposed defendants, no occasion has arisen for the Agent’s evidence to be disclosed, much less his identity. If a proceeding is issued its course cannot be predicted. The defendants may not enter an appearance to the proceeding; they may not defend it. It may be resolved by negotiation or mediation. If the proceeding gets to trial, and if there is then cogent evidence before the Court justifying the Agent’s fears, the trial judge can employ a number of different procedural mechanisms to ensure that the evidence of the Agent is put before the Court and that the Agent’s safety is, if necessary, protected. The occasion for considering such remedies has not arisen. It may never arise. The application for a pseudonym order must be refused.
Having regard to some of the contents of the confidential affidavit, it should remain, for the moment, confidential and accordingly an order to that effect will be made.
Orders
The Court will make the following orders:
1. The affidavit of Anthony Graham Pearman sworn 24 June 2015 remain confidential and be placed in a sealed envelope on the Court file endorsed: ‘To be opened only by or on the order of a Judge of this Court’.
2.The application for a pseudonym order be refused.
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