Ex parte - [2015] VSC 331

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…

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.

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Details

Case: [2015] VSC 331
Decision Date: 9 July 2015

CaseChat Overview and Summary

The case involved an application for a pseudonym order by a defendant who wished to be known by a pseudonym in relation to proceedings in the County Court. The matter was heard in the Supreme Court of Victoria, where the application was refused. The defendant, who was facing charges of trafficking in dangerous drugs, sought to be known as "John Doe" in court to protect his identity and safety. The prosecution opposed the application on the basis that there was no point of principle involved and the application was an abuse of process.

The court considered whether the application raised a point of principle or a substantial question of law. The judge found that the application did not meet the threshold for granting a pseudonym order, as it did not involve a significant issue of public interest or constitutional importance. The court also noted that the defendant's safety could be adequately protected by other means, such as security measures and witness protection programs. The judge held that the application was an abuse of process and refused the application.

The court emphasised that pseudonym orders are not to be granted lightly and should only be considered in exceptional circumstances. The judge found that the defendant's desire to protect his identity did not meet the criteria for a pseudonym order, as there was no point of principle involved. The court also noted that the defendant's safety could be adequately protected by other means, such as security measures and witness protection programs. The judge held that the application was an abuse of process and refused the application.

The court did not make any orders in relation to the application. The defendant was required to attend court proceedings under his real name, and security measures were put in place to protect his safety. The court's decision highlights the importance of considering the criteria for granting a pseudonym order and the need to balance the defendant's right to privacy with the public's right to know.

Orders