GHJ v Secretary to the Department of Justice and Community Safety

[2019] VSC 89

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2018 02397

GHJ	Plaintiff
v
SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY	Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 February 2019
DATE OF RULING:	6 February 2019 (Revised)
CASE MAY BE CITED AS:	GHJ v Secretary to the Department of Justice and Community Safety
MEDIUM NEUTRAL CITATION:	[2019] VSC 89

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JUDICIAL REVIEW — Plaintiff applying for Working with Children assessment — Decision to give plaintiff negative assessment — Judicial review of decision — Plaintiff seeking pseudonym order — Plaintiff a child at time of relevant conduct — Inherent jurisdiction — Pseudonym order granted — Children, Youth and Families Act 2005 s 534(1); Working with Children Act 2005 s 17(3).

PRACTICE AND PROCEDURE — Pseudonym order — Judicial review of negative assessment under Working with Children Act 2005 — Plaintiff a child at time of relevant conduct.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms G Cafarella	Victoria Legal Aid
For the Defendant	Mr P Panayi and Mr A Sim	Working with Children Check Unit, Department of Justice and Community Safety

HIS HONOUR:

1. The plaintiff seeks judicial review of the defendant’s decision to issue him a negative notice after he applied for an assessment under the Working with Children Act 2005.

1. In this application, the plaintiff seeks orders that, in the exercise of the Court's inherent jurisdiction, he be only referred to by a pseudonym; all documents in the case refer to him by the pseudonym; and all documents filed in this case refer to the alleged victims as ‘the alleged victims’. In respect of the last issue, a question has arisen in discussion whether it is appropriate just to refer to them as ‘the victims’. Finally, an order is sought for the closure of the file.

1. The plaintiff requires an extension of time for the commencement of the proceeding and I grant that extension.

1. The plaintiff’s summons states that:

The application is made on the grounds that there is a real risk of prejudice to the administration of justice if no pseudonym order were made. It is in the interests of the administration of justice that a pseudonym order and confidentiality orders be made by the Court to prevent publication of the Plaintiff or any alleged victim’s names, who were both children at the time of the alleged offending that was determined without a finding of guilt in the Children's Court.

1. I have been provided with a chronology of events that show that the plaintiff was issued with ‘a negative assessment notice’ under the Working with Children Act2005.

1. The plaintiff was charged with two counts of ‘Transmit Objectionable Material’ on 8 June 2017, when he was 17. When the matter came before the Children's Court, it ordered that the charges be dealt with by a youth diversion order. Following the plaintiff’s completion of the steps required by that order the charges were discharged by the Children's Court.

1. The transmission of the objectionable material occurred in December 2016 when the plaintiff was under the age of 18 and therefore a child. Section 534(1) of the Children, Youth and Families Act2005 provides that a person must not publish or cause to be published, except with permission, a report of a proceeding in the Children’s Court that contains any particulars likely to lead to the identification of a child or other party to the proceeding.

1. The defendant, whose title is now the Secretary to the Department of Justice and Community Safety, does not consent to the application, but has made helpful submissions which, if accepted, would provide a basis for not making the pseudonym and other orders sought.

1. The chronology shows that the plaintiff first sought review of the negative assessment in VCAT but that after the defendant submitted that VCAT lacked jurisdiction to hear the matter, the proceeding was struck out by consent with a right of reinstatement.

1. The parties accepted that the Court has inherent jurisdiction to make a pseudonym order. Reference was made to the judgement of Justice J Forrest in ABC v D1.[1] Based on that decision, the following matters appear relevant to the exercise of the Court’s inherent jurisdiction.

   [1][2007] VSC 480.

1. First and very importantly, is the principal rule that judicial hearings should take place in open court, a factor reinforced by the Open Courts Act2013. But, in certain cases, the principle of open courts must be qualified where it is necessary to do so in order not to prejudice the administration of justice.

1. The individual circumstances and considerations affecting the person seeking such an order can be taken into account, but must be balanced against the open justice principle. In cases involving sexual assaults – and I consider in certain circumstances cases involving the transmission of objectionable material – it may be appropriate to suppress the names of persons additional to the alleged offender, particularly persons who may be regarded as victims.

1. As counsel submitted, a pseudonym order is the most limited form of order departing from the open courts principle. Where a pseudonym order is made, there can still be reporting of the proceeding. While proof of the need for a pseudonym order must generally be cogent, in certain circumstances a court can, in a practical sense, act on its own experience of litigation and draw appropriate inferences about the need for such an order.

1. I discussed with counsel for the plaintiff the fact that a number of people close to the plaintiff seem to already know details of the matters that led to the charges against him that were dealt with by the Children's Court. But it was put to me, and I accept, that the plaintiff has a concern about the wider publication of the details of the conduct that led to him being charged with the transmission of objectionable material. There is also the possibility that, if he is identified, people to whom he sent the material may be directly or indirectly identified as well.

1. I consider that a factor of considerable weight is the policy of the Children, Youth and Families Act 2005: that children who are brought before the Children's Court are not to be identified by particulars being published likely to lead to their identification. It is a strong public policy, long established, that gives proceedings in the Children's Court that character, and that protection.

1. In all the circumstances, placing considerable weight on that factor but also taking the important principle of open justice into account, I do consider that it is appropriate to make the pseudonym order sought. I will adopt the pseudonym of GHJ to refer to the plaintiff and make other consequential orders.