Hume v The Council of the Kings School

[2010] NSWSC 186

CITATION:	Hume v The Council of the Kings School [2010] NSWSC 186
HEARING DATE(S):	8 March 2010
JUDGMENT DATE :	10 March 2010
JUDGMENT OF:	Latham J
DECISION:	1. The applicant is granted leave to inspect the documents produced by NSW Police pursuant to a subpoena issued in these proceedings. 2. The applicant is to be addressed and referred to only by the pseudonym “X” in the Court ; in any document to be filed with the Court (except any subpoenas caused by the plaintiff to be issued and where such subpoenas are directed to seeking documents relevant to the applicant and in which it is necessary to refer to the applicant by name, provided that such subpoenas do not disclose any part of the allegations made in the Statement of Claim against him) ; and in any affidavit to be relied upon in Court. 3. The solicitor for the applicant is granted leave to uplift the Statement of Claim filed on 6 November 2009 from the Court file and to redact the Statement of Claim to remove all references to the applicant’s name and replace them with the pseudonym “X” and to replace the redacted Statement of Claim in the Court file within 2 days of the date of this order. 4. Any matter which is likely to lead to the identification of the applicant is not to be reported, published or broadcast in or on any form of public media including (but not limited to) magazines, newspapers, radio, television and the World Wide Web. 5. A copy of these orders is to be provided to any person to whom any matter which is likely to lead to the identification of the applicant in connection with the proceedings is communicated (by the parties to this proceeding or any other person). 6. Seven days notice must be given to the solicitor for the applicant of any application to inspect the Court file in these proceedings. 7. The affidavit of Ian Stirling Craig sworn 9 February 2010 is to be treated as confidential in the Court file. 8. The solicitor for the plaintiff is to give seven days notice to the solicitor for the applicant of any subpoenas proposed to be filed and served containing the applicant’s name or containing information that is likely to lead to the identification of the applicant. 9. I grant leave to the parties to apply on seven days notice. 10. Costs are reserved.
CATCHWORDS:	PRACTICE AND PROCEDURE - interlocutory orders - application by person identified in Statement of Claim for non-publication order and pseudonym order - alleged sexual offences committed by juvenile - consent of defendant to orders - non-publication order not opposed by plaintiff - whether principles of open justice unduly compromised by pseudonym order - early stage of proceedings - potential application of Children (Criminal Proceedings) Act 1987 - desirability of other witnesses coming forward - non-publication order and pseudonym order justified in particular circumstances of this case
LEGISLATION CITED:	Childrens (Criminal Proceedings) Act 1987 Civil Procedure Act 2005
CASES CITED:	John Fairfax Publications Pty Ltd & 2 Ors v Ryde Local Court & 3 Ors [2005] NSWCA 101 ; 152 A Crim R 527 John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 R v Kwok [2005] NSWCCA 245 ; 158 A Crim R 160 ; 64 NSWLR 335 John Fairfax Publications Pty Ltd v District Court of New South Wales NO CORRECT CITATION Witness v Marsden (2000) 49 NSWLR 429 John Fairfax Group Pty Ltd (recs and mgrs apptd) v Local Court of New South Wales (1991) 26 NSWLR 131 R v Socialist Worker Printers and Publishers Ltd, Ex parte Attorney General [1975] QB 637 A v Hayden (No 2) (1984) 156 CLR 532 O’Shane v Burwood Local Court & Ors. [2007] NSWSC 1300 W v M & Ors. [2009] NSWSC 1084
PARTIES:	John Hamilton Andrew Hume - Applicant The Council of The Kings School - Respondent
FILE NUMBER(S):	SC 2009/20564
COUNSEL:	N Bender - Applicant E Beilby - Respondent
SOLICITORS:	Thompson Eslick - Applicant Beilby Poulden Costello - Respondent

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

LATHAM J

10 MARCH 2010

2009/20564 JOHN HAMILTON ANDREW HUME v THE COUNCIL OF THE KINGS SCHOOL

JUDGMENT ON NOTICE OF MOTION OF 9 FEBRUARY 2010

1 HER HONOUR : The applicant filed a Notice of Motion on 9 February 2010 seeking orders mandating reference to him in the proceedings between the plaintiff and the defendant, including in court documents, by way of the pseudonym “X”. On the same day, interim orders were obtained to that effect pending the hearing of the Notice of Motion listed for 8 March 2010. The applicant has the defendant’s consent to the proposed orders. The plaintiff opposes this aspect of the Notice of Motion.

2 The applicant also seeks a non publication order in respect of material likely to lead to his identification (again, with the consent of the defendant), which is not opposed by the plaintiff. The plaintiff’s position is that the interests of justice in the circumstances of this case may be entirely met by the proposed non publication order, but that current authority is against the proposition that shame, embarrassment and damage to reputation are sufficient to justify the interference with the open administration of justice that the use of a pseudonym entails.

3 The substantive proceedings were commenced by Statement of Claim filed on 6 November 2009. The plaintiff claims damages against the defendant on the basis that he was subjected to numerous serious assaults, including sexual assaults, whilst a student at the defendant's school between 1990 and 1992. These assaults were said to have been committed by fellow students, including the applicant. The alleged assaults committed by the applicant are particularised in paragraph 4 (f) to (h) of the Statement of Claim.

4 The defence filed on 16 December 2009 deny the allegations made by the plaintiff. The first return date for the Statement of Claim is 15 March 2010. Some documents have been produced under subpoena, including documents produced by the New South Wales Police, in respect of which the applicant seeks leave to inspect. These documents provide the basis for one of the submissions made by the applicant on the Notice of Motion, namely that a complaint made by the plaintiff to the New South Wales Police, which may result in a criminal prosecution against the applicant, potentially enlivens the provisions of the Childrens (Criminal Proceedings) Act 1987 with respect to mandatory non publication orders, given that the applicant and the plaintiff were both juveniles at the relevant time.

5 At some point after the Statement of Claim had issued, the plaintiff made a complaint to the New South Wales Police, alleging the commission of a sexual assault upon him by the applicant. The New South Wales Police are yet to confirm with the plaintiff that he wishes to pursue this complaint while the civil proceedings are on foot. There is no evidence to suggest that the plaintiff has made any complaint in respect of any of the allegations at any time in the period of almost 20 years that have elapsed since the events underpinning the Statement of Claim.

6 The applicant relies upon two affidavits sworn by his solicitor and a letter from the plaintiff’s solicitors dated 11 February 2010 (Ex A). The following evidence emerges from that material.

7 [Deleted under the terms of the non-publication order]

8 [Deleted under the terms of the non-publication order]

9 [Deleted under the terms of the non-publication order]

10 [Deleted under the terms of the non-publication order]

11 The extent of that prospective damage must be gauged, as far as it can be at this early stage of the proceedings, by the nature and substance of the allegations made by the plaintiff against the applicant. They are of a most brutal and degrading kind. They allege two discrete physical assaults upon the plaintiff (September 1990 and early 1991), one to the plaintiff’s head and one involving repeated kicks to the plaintiff’s stomach, and two discrete acts of forcible anal intercourse (September 1990 and the latter part of 1992). The credibility of the plaintiff in this regard will be hotly contested, not least because of the fact that the applicant left the school in November 1991, but also because the plaintiff presently suffers from a psychiatric illness which has resulted in his entry into institutional care. This disability is in fact a particular of the plaintiff’s injuries that is attributed to the defendant’s negligence.

12 It is not suggested by the plaintiff that the fears of the applicant, or his distress and anxiety occasioned by the prospect of the public disclosure of the allegations, are not genuine, or are unfounded or unreasonable.

The Relevant Principles

13 There are many authoritative statements in the law confirming the importance of the principle of open justice. In John Fairfax Publications Pty Ltd & 2 Ors v Ryde Local Court & 3 Ors [2005] NSWCA 101 ; 152 A Crim R 527, Spigelman CJ said :-

60 The principle of open justice is a fundamental axiom of the Australian legal system. It informs and energises numerous areas of the law as I have sought to show elsewhere. (See Spigelman “Seen to be Done: The Principle of Open Justice” (2000) 74 ALJ 290, 378.) It is appropriate for the court to have regard to the principle when determining applications for access under any express or implied power to grant access. In this regard it is, however, pertinent to recognise that the principle has purposes related to the operation of the legal system. Its purposes do not extend to encompass issues of freedom of speech and freedom of the press.
61 The purpose of the principle of open justice was well stated by Jeremy Bentham who said:
“Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial.” (Quoted in Garth Nettheim, “The Principle of Open Justice” (1986) 8 U Tas L R 25, 28 from Bowring (ed), Works of Jeremy Bentham (1843) Vol 4 at 316-317.)
62 To similar effect are the observations of Lord Diplock in Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 450:
“If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice.”
63 Finally, Sir Harry Gibbs observed in Russell v Russell (1976) 134 CLR 495 at 520:
“ … [T]he proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts.”

14 The operation of the principle may, however, be qualified where the proceedings have only just commenced : see John Fairfax Publications Pty Ltd & 2 Ors v Ryde Local Court & 3 Ors per Spigelman CJ at [65]. There has been no judicial consideration of the instant proceedings, a matter of some considerable relevance to the exercise of the Court’s discretion, given the potential application of the limitation period.

15 The full exposure of every court to public and professional scrutiny includes the identification of the parties and of witnesses that may be called in the proceedings, subject only to the inherent jurisdiction of the Court and to its powers under s 72 of the Civil Procedure Act 2005 to inhibit or prevent that identification where it is necessary to secure the proper administration of justice : John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 per McHugh JA.

16 In John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 Mahoney JA (with whom Hope AJA agreed) considered the scope of the test of necessity (at 161) :-

This leads to the consideration of what is meant by "necessary to secure the proper administration of justice" in this context. The phrase does not mean that if the relevant order is not made, the proceedings will not be able to continue. Plainly they can. If the name of an informer is not hidden under a pseudonym, the proceeding will go on: at least, the instant proceeding will. And if the name of a security officer is revealed, the administration of justice or of the country will not collapse. The basis of the implication is that if the kind of order proposed is not made, the result will be - or at least will be assumed to be - that particular consequences will flow, that those consequences are unacceptable, and that therefore the power to make orders which will prevent them is to be implied as necessary to the proper function of the court. The kinds of consequences that, in this sense, will be seen as unacceptable may be gauged by those involved in the cases in which statutory courts have been accepted as having restrictive powers. Thus, there will be hardship on the informer or the security officer or the blackmail victim; the future supply of information from such persons will end or will be impeded; and it will be more difficult to obtain from such persons the evidence necessary to bring offenders before the courts and deal with them. It is not necessary to attempt to state exhaustively the considerations relevant in this regard: it is to considerations of this kind or of an analogous kind on which the principle stated by McHugh JA is based.

17 Mahoney JA’s reference to certain categories of non publication orders in the nature of suppression of identity was re-visited in R v Kwok [2005] NSWCCA 245 ; 158 A Crim R 160 ; 64 NSWLR 335. Hodgson JA upheld the trial judge’s decision to suppress the names of the alleged victims of offences of sexual servitude on the basis that they were analogous to victims of blackmail (at [21]). In doing so, his Honour accepted that “the Court will not freely invent new categories of cases” (at [19]). This reluctance was also expressed by Spigelman CJ in John Fairfax Publications Pty Ltd v District Court of New South Wales at [19]. However, these statements were made in respect of the inherent powers of the Court. Neither Kwok or John Fairfax Publications Pty Ltd v District Court of New South Wales were concerned with s 72 of the Civil Procedure Act, although it is accepted that the provision is informed by common law principles.

18 Howie J agreed with Hodgson JA and went on to note that “even if the application were refused on the basis that the offence does not fall into a class in respect of which such orders might be made, it did not deprive the court of the power to make such an order if it were necessary in relation to any particular witness”, citing Witness v Marsden (2000) 49 NSWLR 429 at 144 in support of that proposition. Rothman J also agreed with Hodgson JA and made similar observations to those made by Howie J (at [41]).

19 The applicant acknowledges that he does not fall into any of the so-called recognised categories, namely, police informers: Cain v Glass (No 2) (1985) 3 NSWLR 230, victims of extortion: John Fairfax Group Pty Ltd (recs and mgrs apptd) v Local Court of New South Wales (1991) 26 NSWLR 131; R v Socialist Worker Printers and Publishers Ltd, Ex parte Attorney General [1975] QB 637, or national intelligence agency operatives: A v Hayden (No 2) (1984) 156 CLR 532. The application is pressed on the basis recognised by Howie J and Rothman J in R v Kwok and derived from this Court’s decision in Witness v Marsden, and on the basis of the express powers under s 72 of the Civil Procedure Act.

20 In Witness v Marsden, the Court of Appeal overturned a decision by the trial judge in defamation proceedings, refusing an order allowing a witness on behalf of the defendant to be identified by way of a pseudonym. The witness was in custody at the relevant time and gave evidence before the trial judge of his fear of retribution from other prison inmates when it became known that he would be giving evidence of his sexual behaviour in an asserted homosexual relationship with the plaintiff. Those fears were expressed by the witness in terms of physical assaults upon him that would endanger his life.

21 Heydon JA accepted that the tests applied by the trial judge were appropriate, namely that the fears held by the witness must be genuine, that there must objectively be reasonable grounds for those fears, and it must be the case that the ends of justice would be defeated by the denial of the pseudonym, so that a pseudonym was necessary to avert an outcome (at 453).

22 Heydon JA held that the trial judge had given insufficient weight to the fact that the witness stood in a position analogous to an informer, and that the availability of protection within the prison system did not detract from the fact that his fears were based on reasonable grounds. Furthermore, the witness also relied on the impact of the publicity in relation to members of his family which went beyond "mere embarrassment", with the potential to jeopardise the witness' attempts to rebuild his relationship with his parents, particularly in circumstances where both of his parents suffered from ill health. As to this latter aspect, Heydon JA refrained from deciding "whether in isolation it would justify any different approach to the witness's application" (at 460).

23 Mason P agreed with Heyden JA and went on to note (at 431) that the appeal :-

was argued on the basis of weighing the private interests of the witness against the private interests of the plaintiff and the public interest in open justice. … It does appear to me that any decision concerning pseudonym orders involves an additional public interest factor. The interests of justice include the interests in securing relevant testimony. The grant of a pseudonym order in one case may encourage other similarly placed witnesses to come forward. This is a relevant factor (citations omitted).

24 Priestley JA noted (at 431 - 432) that the trial judge had given :-

insufficient weight to the evidence of the witness of his fear of retribution in jail if it became known that he had given evidence of the kind contained in his statement before the court, together with insufficient weight being given to the very real desirability of the witness being able to give evidence to the court without fear, or with reduced fear, of that retribution affecting him when giving evidence. ….. The making of the pseudonym order in the present case cuts down the openness of the plaintiff’s defamation proceedings in a very limited way. The court remains open. The witness will give evidence in open court but under a name not his own.


This last remark amounted to recognition of the fact that there would generally be minimalist interference with open justice where a pseudonym order is made in favour of a witness ; see also Heydon JA at 461.

Limitations on Pseudonym Orders – Shame, Embarrassment, Damage to Reputation.

25 In O’Shane v Burwood Local Court & Ors. [2007] NSWSC 1300, McClellan CJ at CL quashed the order of a magistrate allowing a party to apprehended personal violence proceedings to be identified by way of a pseudonym. His Honour’s decision turned on the fact that there was no power in the Local Court to make such an order and on the fact that no evidence was called in support of the application. The high point of the application to the magistrate in that case was a submission that the relevant party would be upset by the heightened level of media interest in the matter. His Honour said :-

[48] The courts will not add to the list of categories ( John Fairfax Publications Pty Ltd v District Court of New South Wales at [19]) and the present case does not fall within any of the identified categories justifying a pseudonym order.

[50] The inconvenience, irritation or distress which may be suffered by Ms B due to media scrutiny is not a consequence of a kind that would undermine the proper administration of justice in hearing and determining APVO applications. …….

[51] The values inherent in the principle of open justice would be seriously compromised if parties were able to conceal their identities merely because of a heightened degree of media interest in the proceedings, aroused by the involvement of a person with a high public profile.

26 McClellan CJ at CL also relied upon the following remark by Howie J In R v Kwok :-

It is important in light of the material relied upon by the prosecution to stress that it is the interests of justice that lie at the heart of such an application and not the interests of a private individual, such as a witness or an accused. The decided cases have emphasised the value of open courts to maintaining public confidence in the administration of justice. Open justice encompasses the right of the media to fully and frankly report cases before the courts, even at the expense of the personal feelings of those involved in judicial proceedings, including the innocent complainant.

27 In W v M & Ors. [2009] NSWSC 1084 Brereton J refused an application to set aside non publication and pseudonym orders, on the basis that publication of the subject matter of the proceedings would defeat the very ends of the litigation. His Honour noted at [25] that protection of the party from embarrassment was of itself insufficient ground for an order of the type under consideration. This is the only decision of which I am aware that directly addresses the Court’s powers under s 72 of the Civil Procedure Act.

Resolution

28 I accept that the weight of authority is against the grant of a pseudonym order in these proceedings solely on the basis that the applicant will suffer shame, embarrassment or even damage to his reputation in the event of widespread publication. However, the evidence in support of the application goes some way towards establishing the very real prospect of economic harm to the applicant, in so far as his intention to secure ongoing employment in the financial sector may be thwarted by any identification of him.

29 I have thus far dealt primarily with the application for an order authorising the use of a pseudonym. That is because the plaintiff took the position that an order prohibiting publication of material capable of identifying the applicant was sufficient to meet any substantial harm, whilst objecting in principle to the use of a pseudonym. There is a measure of inconsistency in the plaintiff’s approach. The plaintiff appears to be acknowledging the real risk of damage to the applicant arising out of publication, and the desirability of minimising that risk as far as the principles of open justice allow, yet at the same time insists on withholding from the applicant the additional protection that the use of a pseudonym would provide.

30 That position may arise out of the tacit recognition by the plaintiff of the inconsistency between full expression of the principles of open justice in this case and the mandatory terms of s 15A of the Children (Criminal Proceedings) Act 1987. Section 15A provides that the name of a person must not be published or broadcast in a way that connects the person with criminal proceedings, if (relevantly) the proceedings relate to the person and the person was a child when the offence to which the proceedings relate was committed. It extends to the publication of information, pictures or other material that identifies the person or is likely to lead to the identification of the person, even where the person is no longer a child. It may be assumed that criminal proceedings have not yet commenced against the applicant, in that he has not been charged, but that seems to be a product of the exercise of prosecutorial discretion. For my part, I find it curious that the exercise of that discretion should depend upon confirmation by the plaintiff that he wishes to proceed with criminal charges against the applicant. The authorities are in possession of evidence of the commission of serious sexual offences. Ultimately, the plaintiff may not be (and arguably should not be) able to determine when and if those charges are laid against the applicant.

31 In any event, the non publication order is warranted on the basis that, without it, any future application of the provisions of the Children (Criminal Proceedings) Act will be rendered nugatory. The question remains whether it is necessary, in order to secure the proper administration of justice in these proceedings, to effectively re-enforce the non publication order by allowing the applicant to adopt a pseudonym in all court documents and for the purposes of the proceedings generally. In other words, what consequences will flow from a failure to make the order that might impede the future supply of information or the provision of relevant evidence in the proceedings between the plaintiff and the defendant ?

32 It is more than conceivable that there are other past students of the defendant school who are in a position to give relevant information relating to the alleged commission of the assaults set out in the Statement of Claim. Many of the assaults are alleged to have been committed in the presence of “other senior students” or by “a senior student”. The plaintiff also alleges that he received “daily beatings involving being punched, kicked and/or struck with objects about the head and all parts of the body … usually [involving] a number of senior students.” (Par 4(a)) It is not difficult to imagine the extreme reluctance of some of these “senior students” to make themselves known to the plaintiff or to the defendant, lest they be identified as perpetrators, or as witnesses to the assaults, who did nothing to protect the plaintiff or to report the behaviour to the defendant’s employees. Given the extremely violent and sadistic nature of the allegations, no-one would wish to be caught up in the proceedings long after they had established respected and productive lives in the community.

33 This consideration was advanced by the applicant. It finds support in Mason P’s comments in Witness v Marsden. Having regard to the fact that the applicant does not however conform to any of the recognised categories justifying a pseudonym order, directly or by analogy, this factor alone may not be sufficient to justify the exercise of the Court’s discretion under s 72 of the Criminal Procedure Act, having regard to the very considerable constraints upon any incursion into the principle of open justice. However, I have determined that this consideration, in combination with the following factors, justifies the order sought by the applicant. Those additional factors are :-

i) The proceedings are in their infancy and have not been the subject of any judicial consideration.

ii) The plaintiff was admitted to institutional care in mid February 2010 and was unable to provide instructions for some period of time. There is no assurance that the plaintiff’s psychiatric condition will not affect the future conduct of the proceedings.

iii) The interference with open justice represented by a pseudonym order is minimal, particularly where the plaintiff does not oppose a non publication order in the proposed terms.

iv) The difficulty of ensuring that the terms of a non publication order are conveyed to every person who may be present in court at this early stage of the proceedings militates in favour of a pseudonym order.

34 I have reached this conclusion on the basis of the particular circumstances that exist at the present time. The proposed pseudonym order should in my view be re-visited at an appropriate time in order to ensure that it does not unduly infringe the principle of open justice as the proceedings progress towards a hearing date. It follows from what I have said above that the proposed pseudonym order will be more difficult to justify the longer the proceedings remain on foot.

35 I make the following orders :-

1. The applicant is granted leave to inspect the documents produced by NSW Police pursuant to a subpoena issued in these proceedings.

2. The applicant is to be addressed and referred to only by the pseudonym “X” in the Court ; in any document to be filed with the Court (except any subpoenas caused by the plaintiff to be issued and where such subpoenas are directed to seeking documents relevant to the applicant and in which it is necessary to refer to the applicant by name, provided that such subpoenas do not disclose any part of the allegations made in the Statement of Claim against him) ; and in any affidavit to be relied upon in Court.

3. The solicitor for the applicant is granted leave to uplift the Statement of Claim filed on 6 November 2009 from the Court file and to redact the Statement of Claim to remove all references to the applicant’s name and replace them with the pseudonym “X” and to replace the redacted Statement of Claim in the Court file within 2 days of the date of this order.

4. Any matter which is likely to lead to the identification of the applicant is not to be reported, published or broadcast in or on any form of public media including (but not limited to) magazines, newspapers, radio, television and the World Wide Web.

5. A copy of these orders is to be provided to any person to whom any matter which is likely to lead to the identification of the applicant in connection with the proceedings is communicated (by the parties to this proceeding or any other person).

6. Seven days notice must be given to the solicitor for the applicant of any application to inspect the Court file in these proceedings.

7. The affidavit of Ian Stirling Craig sworn 9 February 2010 is to be treated as confidential in the Court file.

8. The solicitor for the plaintiff is to give seven days notice to the solicitor for the applicant of any subpoenas proposed to be filed and served containing the applicant’s name or containing information that is likely to lead to the identification of the applicant.

9. I grant leave to the parties to apply on seven days notice.

10. Costs are reserved.

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