Herald & Weekly Times Ltd v P Q R
[2000] VSC 335
•25 August 2000
| SUPREME COURT OF VICTORIA | |
| PRACTICE COURT | Not Restricted |
No. 6365 of 2000
| THE HERALD AND WEEKLY TIMES LTD. | Plaintiff |
| v. | |
| P.Q.R. AND ANOTHER | Defendants |
---
JUDGE: | BEACH, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 AUGUST 2000 | |
DATE OF JUDGMENT: | 25 AUGUST 2000 | |
CASE MAY BE CITED AS: | THE HERALD AND WEEKLY TIMES LTD. v. P.Q.R. | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 335 | |
---
CATCHWORDS: Practice and Procedure – Pseudonym order – Jurisdiction of County Court to make such an order – County Court Act 1958, ss.80 and 80AA.
---
APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr. W. Houghton Q.C. and Mr. J. Gorton | Corrs Chambers Westgarth |
| For the First Defendants | Mr. W. Gillies | Plotkins |
HIS HONOUR:
On 28 March 1999 the plaintiff the Herald and Weekly Times Limited published an article in the Sunday Herald Sun headed "We were stolen too".
The article contained the following statements:
"- Jan Pollard's 41 years of life have been filled with torture. Her mother was forced to give her up for adoption when she was born in 1953. In 1974 she too was coerced to surrender her baby.
-Months after she became a ward of the State at 15, Ms. Pollard was raped. Her daughter, Terri, was born on August 1, 1974 at the Royal Women's Hospital."
By order of the County Court of Victoria made on 2 September 1975 Terri was adopted by Clive Windley and Glynis Christine Windley and was registered in the name of Justice Simone Windley.
Following publication of the article the Herald and Weekly Times was charged with a breach of s.121 of the Adoption Act 1984. That section makes it an offence (inter alia) to publish in a newspaper any matter that identifies a person who has been adopted or is reasonably likely to enable any person to be identified as such a person.
The charge against the Herald and Weekly Times came before the Melbourne Magistrates' Court on 3 July 2000 for a status hearing.
At the Court that day the solicitor for Terri handed to the Herald and Weekly Times' solicitor a draft writ and statement of claim.
Terri was the proposed plaintiff to the proceeding. The Herald and Weekly Times was the proposed defendant. Terri was referred to in the heading to the writ by the pseudonym J.S.W.
The draft statement of claim alleged that by reason of the publication of the article the plaintiff had been gravely injured, had been held up to public scandal, ridicule and contempt, and had suffered loss and damage.
The plaintiff sought both damages and exemplary damages.
Upon being handed the draft writ and statement of claim, the solicitor for the Herald and Weekly Times told the solicitor for Terri that the Herald and Weekly Times wanted to be given advance notice in the event that Terri applied for permission to use a pseudonym in the proceeding or applied for any other suppression order because the Herald and Weekly Times wished to be heard and wished to oppose the making of any such orders.
By fax dated 3 July 2000 to the solicitors for Terri, the solicitors for the Herald and Weekly Times advised them that the Herald and Weekly Times required advance notice in the event that Terri applied for a pseudonym order.
On 11 July 2000 counsel for Terri made an oral ex parte application to a Judge of the County Court for a pseudonym order. No notice of the application was given to the Herald and Weekly Times or its solicitors.
A County Court Judge acceded to the application and that day made, inter alia, the following orders:
"1.The proposed Plaintiff be at liberty to commence the proceeding referred to in the said Affidavit of CHARLES EDWARD RECHNITZER filed in support of this application ('the proceeding') so that:
(a)the proposed Plaintiff in such proceeding is not required to be identified therein by her true name but shall instead be referred to in the originating process and any subsequent document filed in the proceeding by the pseudonym 'PQR', and
(b)the Plaintiff is not required to comply with the requirements of Rule 5.07.1 of Chapter 1 of the Rules of this Honourable Court.
…
3. Publication be prohibited of any report of:
(a) the contents of any Affidavit in support of this application;
(b)the Statement of Claim or any subsequent document in the proposed proceeding or from which the Plaintiff might be identified, and
(c)the hearing of any interlocutory process in the proposed proceeding, to the extent only that publication might tend to identify the Plaintiff."
On 19 July 2000 the Herald and Weekly Times received the issued writ and statement of claim. Although the statement of claim pleads the facts of Terri's birth, original name, adoption and adopted name, it otherwise identifies Terri by the pseudonym P.Q.R.
On 7 August 2000 the Herald and Weekly Times filed an originating motion in the Court naming as defendants P.Q.R. and the County Court of Victoria by which it seeks an order in the nature of certiorari bringing the orders of the County Court of 11 July 2000 up into this Court and quashing them.
The following are the grounds upon which that relief is sought:
"1.The First Defendant failed to give the Plaintiff notice of her application for the orders. The Plaintiff had previously notified the First Defendant that it wished to be heard if any such application were to be made. The First Defendant did not serve the Plaintiff with the affidavit it relied upon. The Plaintiff was therefore denied the opportunity to be heard, and the orders were obtained and made in a manner that was not procedurally fair to the Plaintiff.
2.His Honour misdirected himself at law, alternatively misconstrued sections 80 and 80AA of the County Court Act by making the orders without being satisfied that the orders were necessary so as not to prejudice the administration of justice or endanger the physical safety of any person.
3.His Honour erred in law alternatively denied procedural fairness to the Plaintiff by failing to give reasons for the making of the orders.
4.The County Court had no power to make a 'pseudonym order' and accordingly by making order 1 his Honour committed a jurisdictional error, alternatively misdirected himself or misconstrued sections 80 and 80AA of the County Court Act."
Somewhat surprisingly the plaintiff's application was opposed by counsel for P.Q.R. I say that for the reason that it is a clearly established principle that if a person is denied procedural fairness in relation to the making of a court order, he or she is entitled ex debito justitiae to have the order set aside. See Cameron v. Cole (1944) 68 C.L.R. 571 and Taylor v. Taylor (1979) 143 C.L.R. 1.
In this case the plaintiff had specifically requested the solicitors for P.Q.R. both orally and in writing to give them notice of any application they intended to make to the County Court for a pseudonym order or suppression order.
They were entitled to that notice and were entitled to be present at the hearing of the application and to be heard in relation to it.
To contend as counsel for P.Q.R. did, that as no proceeding had been instituted at that time, there was no need to give the plaintiff notice, is a contention I reject.
P.Q.R.'s opposition to the plaintiff's application is based upon the proposition that in the circumstances of the case it was not appropriate for the plaintiff to institute a separate proceeding in this Court seeking to have the order of the County Court quashed. What the plaintiff should have done was either to apply for a re-hearing of the application to the Judge who made the order with a view to persuading that Judge to rescind his order, or appeal to the Court of Appeal pursuant to the provisions of s.74 of the County Court Act 1958.
I reject both propositions.
Not only has the plaintiff sought to set aside the orders on the ground of denial of natural justice it has also sought to set them aside on the ground that the County Court had no jurisdiction to make the orders in the first instance.
In the circumstances it is far preferable that the jurisdictional issue be dealt with by a single Judge of this Court.
I turn then to consider that aspect of the matter.
The power of the County Court to depart from the fundamental principle that court proceedings take place in open court and be able to be fairly and accurately reported is given to it by ss.80 and 80AA of the County Court Act.
Those sections read:
"80. Power to close proceedings to the public
(1)The court may in the circumstances mentioned in section 80AA –
(a)order that the whole or any part of a proceeding be heard in closed court; or
(b)order that only persons or classes of persons specified by it may be present during the whole or any part of a proceeding; or
(c)make an order prohibiting the publication of a report of the whole or any part of a proceeding or of any information derived from a proceeding.
(2)This section applies to any proceeding, whether civil or criminal.
(3)If an order has been made under this section the court must cause a copy of it to be posted on a door of the court house or in another conspicuous place where notices are usually posted at the court house.
(4)A person must not contravene an order made and posted under this section.
Penalty: 1000 penalty units or imprisonment for 3 months.
80AA. Circumstances in which order may be made under section 80
The court may make an order under section 80 if in its opinion it is necessary to do so in order not to –
(a)endanger the national or international security of Australia; or
(b) prejudice the administration of justice; or
(c) endanger the physical safety of any person; or
(d) offend public decency or morality; or
(e)cause undue distress or embarrassment to the complainant in a proceeding that relates to a charge for an offence under Subdivision (8A), (8B), (8C), (8D) or (8E) of Division 1 of Part 1 of the Crimes Act 1958 or under any corresponding previous enactment or for an attempt to commit any such offence or an assault with intent to commit any such offence; or
(f)cause undue distress or embarrassment to a witness under examination in a proceeding that relates to a charge for an offence where the conduct constituting the offence consists wholly or partly of taking part, or attempting to take part, in an act of sexual penetration as defined in section 35 of the Crimes Act 1958."
It can be seen that on its face s.80 does not give the Court power to make a pseudonym order unless the words in s.s.1(c) "a report of the whole or any part of a proceeding or of any information derived from a proceeding" can be construed in such a way as to include a pseudonym order.
In my opinion, to do so would be to give a meaning to the words "report of a proceeding" or "information derived from a proceeding" a meaning that they do not possess.
But let me assume that that view of the matter is erroneous and that the making of a pseudonym order is no more than the making of an order prohibiting publication of information derived from a proceeding, namely the true name of the plaintiff.
Is the making of such an order in this case, authorised by s.80AA?
In my opinion the answer to the question posed is – No.
The order was not necessary in order not to endanger the national or international security of Australia, nor was it necessary so as not to endanger the public safety of any person.
There is nothing in the proceeding which could offend public decency or morality nor does the proceeding relate to a charge for the offences specified in sub-paragraphs (e) and (f) of the section.
Finally there is no suggestion in this case that failure to conceal the identity of P.Q.R. in the heading to the writ or the statement of claim would prejudice the administration of justice.
For example there is no suggestion in this proceeding that unless P.Q.R. had obtained a pseudonym order she would not have instituted a proceeding against the Herald and Weekly Times. In fact all indications are to the contrary.
In that regard I point to the following matters:
1.In her statement of claim P.Q.R. has already disclosed the following information:
(a)that she was born on 1 August 1974, was the natural child of Jan Pollard and was named Terri Peta Waring.
(b)that on 2 September 1975 she was adopted by Clive Windley and Glynis Christine Windley and renamed Justine Simone Windley.
2.On 5 May 1999 The Hon. W.I. Smith the member of the Legislative Council for Silvan raised the publication of the article in the Sunday Herald Sun by the Herald and Weekly Times in the Legislative Council.
The relevant passage from Hansard's report of the proceedings that day reads:
" ADOPTION: newspaper article
Hon. W.I. SMITH (Silvan) – I raise a matter for the attention of the Minister for Small Business in her capacity as the representative of the Attorney-General in another place. It concerns Justine Windley, who has given me permission to use her name. She is a young, local woman who was adopted when very young and who now has her own child and family.
On Sunday 28 March she was shocked to read an article in the Sunday Herald Sun entitled 'We were stolen too'. It gave her name, birth date, son's name and other personal details. At no time was she contacted by the journalist for a comment and she was unaware that the story was to be printed. To say Justine was outraged, humiliated, hurt and disgusted by the article is an understatement.
Justine met the next morning with the chief of staff and chief editor who apologised saying the article, 'had slipped through their stringent checking process'. According to Justine, she was asked to fax a letter to the editor which the newspaper would then print. She was advised that the newspaper office would draft a formal apology after legal advice. Justine claims that some of the story was untrue, but more importantly she is deeply shocked and hurt that an article naming her could be printed without her knowledge and agreement.
Section 121 of the Adoption Act appears to have been breached. Will the Attorney-General check whether the Sunday Herald Sun article breached section 121 of the Adoption Act?"
In the light of such matters one asks rhetorically, what aspect of her identity was P.Q.R. seeking to protect by the pseudonym order?
In Raybos Australia v. Jones (1985) 2 N.S.W.L.R. 47 Kirby, P. (as he then was) said:
"Many cases report the scrutiny by courts of statutory provisions designed to derogate from the open administration of justice. Running through these decisions is a common theme. It is that, by our tradition, the open administration of justice is the rule. Statutory derogation from openness is the exception. In defence of the rule, such statutes will usually be strictly and narrowly construed. Unless the derogation is specifically provided for, courts are loathe to expand the field of secret justice."
I can find nothing in ss.80 and 80AA giving jurisdiction to the County Court to make the pseudonym order it did in this case nor did it have the inherent jurisdiction to do so.
It has been suggested in some quarters that an inferior court which on the face of it lacks the jurisdiction to make a pseudonym order may have the implied power to do so if it is "really necessary to secure the proper administration of justice."
I content myself by saying, and for the reasons I have already given, that that is not the situation in the present case.
But if it was, surely such a case would fall within the provisions of s.80AA(b) of the County Court Act.
The orders of the County Court of Victoria made at Melbourne on 11 July 2000 are brought up to this Court and quashed.
I order that the first defendant pay the plaintiff's costs of this proceeding including reserved costs.
So high-handed was the behaviour of the solicitors for the first defendant in making the application without giving notice to the plaintiff that I order that such costs be paid on a solicitor own client basis.
---
0
0
0