Hunter v Australian Football League

[2015] VSC 112

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S CI 2015

HAL HUNTER	Applicant
v
AUSTRALIAN FOOTBALL LEAGUE & ANOR	Respondents

---

JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 MARCH 2015
DATE OF RULING:	25 MARCH 2015
CASE MAY BE CITED AS:	HUNTER v AFL & ANOR
MEDIUM NEUTRAL CITATION:	[2015] VSC 112

---

PRACTICE AND PROCEDURE –Application by proposed plaintiff to be identified by a pseudonym in a proposed proceeding - Pseudonym order– Whether Open Courts Act 2013 (Vic) applied –Circumstances justifying making a pseudonym order – discretionary considerations – privacy for health matters and medical records alone insufficient - Open Courts Act 2013, s 7(d).

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr Constantinou	Schetzer Constantinou Solicitors
For the First Respondent	Mr O’Brien	DLA Piper
For the Second Respondent	No appearance

HIS HONOUR:

1. This application is for a suppression order that would preclude the publication or disclosure of information that is likely to reveal the identity of the proposed plaintiff in proceedings to be filed with the court. No proceeding has been commenced.

1. Notice of an application for a suppression order was given pursuant to s 10 of the Open Courts Act 2013.  On hearing the application, it became clear that what the proposed plaintiff seeks is what is commonly referred to as a pseudonym order.  I clarified with the applicant’s solicitor that the orders he seeks are that, pending the filing of the substantive proceeding and the return date of that substantive proceeding, the applicant be permitted to issue his proceeding using a pseudonym, that his true identity be restricted to the parties, and that he be referred to in court documents and in open court by that pseudonym, subject to any further order of the court.

1. The distinction between a pseudonym order and a suppression order was explained by Bell J in ABC-1 and ABC-2 v Ring and Ring.[1]  His Honour said:

An order permitting a proposed civil proceeding to be issued in the name of plaintiffs identified by pseudonyms and requiring them to be identified in court documents only by those pseudonyms is not a ‘suppression order’ as defined in s 3. It does not come within any of the components of that definition. Such an order does not prohibit or restrict the publication or other disclosure of information in connection with a proceeding. It is a pre-commencement order that parties are to be named by way of pseudonym in court documents yet to be produced and filed. As a pseudonym order is not a suppression order under the Open Courts Act, it is not necessary for an applicant for such an order to comply with the notice provisions of that Act.

[1](2014) VSC 5, [15].

1. It is not in doubt that this court has an inherent jurisdiction to control its procedures and its processes. Until recently, that power was, in certain respects, regulated by ss 18 and 19 of the Supreme Court Act 1986, but those provisions have been repealed and replaced by the Open Courts Act 2013. That Act does not limit or otherwise affect the court’s jurisdiction to make an order that conceals the identity of a person by restricting the way in which a person is referred to in open court, or prohibiting or restricting access to the court file. So much is clear from s 7(d) of the Act[2] which provides that the Act does not limit or otherwise affect the making of an order or decision by a court or tribunal that-

(i)conceals the identity of a person by restricting the way the person is referred to in open court;

(ii)       restricts the way an event or thing may be referred to in open court;

(iii)      prohibits or restricts access to a court or tribunal file.

[2]Ibid [16], RN v Commonwealth of Australia [2014] VSC 289 [13]; see also Australian Gift and Homewares Association Limited v Melbourne Convention and Exhibition Trust & Anor (Ruling No 1) [2014] VSC 481.

1. It was unnecessary for the applicant to serve notice under s 10 of the Act, which notice had the effect of generating substantial media publicity for the applicant’s proposed proceeding overnight and this morning although without, so far as I am aware, revealing the applicant’s identity. That consequence followed because a court is obliged under s 11 of the Act, on receipt of an notice under s 10(1), to notify media organisations of the application.

1. As I indicated in argument, the Open Courts Act recognises that pseudonym order is different from other restrictions on open justice, such as suppression orders and closed court orders.  That is because the making of a pseudonym order limits the extent of non-disclosure to the identity of a party to the proceeding or a single person within a proceeding, and otherwise does not affect the capacity of the media or anybody who sits within the body of the court to appreciate what is taking place in the proceeding before the court.  In other words, there is complete openness and accountability in the court's processes, save that an identity is not revealed.  A pseudonym order thus has a very limited effect on the public nature of the proceedings and their accessibility to any interested observer.[3]  Although a potential liability in contempt may arise on breach of the order,[4] no need arises for media proprietors to be heard in respect of either the making or the revocation of a pseudonym order.

   [3]See the comments in X v Sydney Children’s Hospitals Speciality Network [2011] NSWSC 1272, [15] and Witness v Marsden & Anor (2000) 49 NSWLR 429.

   [4]AAA v BBB (unreported, Supreme Court of Victoria, Ashley J, 26 August 1994), 6-7; R v Savvas, Stevens & Peisley (1989) 43 A Crim R 331; Attorney-General for NSW v Mayas Pty Ltd (1988) 14 NSWLR 342, 355.

1. Although there were indications before the extensive publicity that followed notification of the application to the media that the application would be opposed by some media organisations, none appeared today to oppose the order.  The first defendant, the Australian Football League, appeared but neither opposed nor consented to the order being sought and was content to adopt comments I made in argument with the applicant’s solicitor.

1. The circumstances on which this application proceeds are disclosed in an affidavit sworn by the applicant's solicitor.  The only fact that has been raised is that the application to be brought, (an application for preliminary discovery), and the substantive proceedings that may follow, may  reveal the health, condition and personal medical/health records of the applicant.  The applicant was a contracted player with the Essendon Football Club from December 2011.  He was delisted in September 2013.  The applicant contemplates that he may have a right to obtain relief for breach of contract and negligence against the AFL, Essendon and possibly others arising from the notorious supplements program.  The applicant wishes to seek preliminary discovery of certain documents without disclosing his identity.

1. At common law, the power to make pseudonym orders is well established.  Essentially, orders are made to prevent prejudice to the administration of justice, and commonly, that is because it is desirable to protect the safety or the health and personal integrity of persons who are to be litigants or witnesses in proceedings.  A common instance is where the disclosure of the identity of a plaintiff might be sufficient to defer or deflect the plaintiff from prosecuting his or her case,[5] unless public disclosure of their identity could be prevented.  Other examples of cases where pseudonym orders are made include where a defendant would be reasonably deterred from defending proceedings, cases involving sexual offences, cases involving children, cases involving asylum seekers, cases involving the national interest, and cases involving questions of public interest privilege in the operation of the criminal justice system.  The applicant’s solicitor was unable to refer to me to any authority in which a pseudonym order had been made for the reasons that the applicant advances. 

   [5][5]          BK v ADB [2003] VSC 129 is an example.

1. The circumstances that commonly influence the discretion to make a pseudonym order, when appropriate, were succinctly stated by J Forrest J in ABC v D1 & Ors, ex parte Herald Sun & Weekly Times Limited.[6]  Forrest J identified seven principles that govern the jurisdiction.  First, judicial hearings take place in open court, publically, and in open view with no restrictions on reporting.  That is a fundamental precept of our system of administration of justice.  Secondly, there are circumstances in which qualification of that fundamental precept is required, and I have already referred to the most common categories of exceptions, but the exceptions are many and varied and cannot be prescriptively identified. 

   [6][2007] VSC 480. This decision has been followed by other judges of the Trial Division on numerous occasions.

1. Thirdly, the test to be applied in making the pseudonym order is whether it is necessary to do so in order not to prejudice the administration of justice.  Fourthly, the court is entitled to take into account individual considerations affecting the person seeking the order, and to balance those considerations against the impact of an order on the principle of open justice.  Fifthly, in certain circumstances or categorise of cases, such as sexual assault cases, the proper course may be suppression of the names of all the parties to the proceedings.

1. Sixthly when all that is made is a pseudonym order, the court is entitled to take into account the fact that reporting of proceedings can still occur and the hearing is still conducted in open court.  Finally, in determining whether a pseudonym order is to be made, the proofs in respect of the evidentiary basis for these considerations must usually be cogent and will not be satisfied by mere belief on the part of a party that an order is necessary. 

1. In my view, this evidence of the applicant’s concerns is not sufficient to identify an interest that outweighs the importance of open justice.  In fact, as I indicated in argument, I can see no distinction between the circumstances of this proposed proceeding and any proceeding that is brought in this court for damages for negligence against a health professional, and proceedings of that sort are commonplace in this court.  I am not aware of a single instance of a medical negligence action being conducted with the benefit of a pseudonym order, granted simply on the basis that the proceeding concerns the plaintiff’s health and medical records. 

1. No reason for a pseudonym order has been advanced by the applicant nor is there any cogent proof, only assertion by the applicant’s solicitor, of any matters that might properly be relied on to enliven the jurisdiction.  I cannot see that there is any risk of prejudice to the administration of justice if a pseudonym order is not made and the applicant’s solicitor was not able to point to any matter raised on the evidence that might indicate that there was such a risk.  Further, I cannot see any cogent reason why a pseudonym order should be made.  It is understatement to observe that the underlying circumstances of the Essendon Football Club’s supplements program have been well publicised and the proposal by a former player (the applicant, but not identified by name) to seek damages against the club and the AFL received widespread publicity overnight.  There is no suggestion that the applicant would be deterred from proceeding under his own name.  There is no suggestion of prejudice to any interest that underlies the confidentiality that has cloaked the private proceedings in respect of the supplements program involving ASADA or the appeals to the Federal Court that arose from it.

1. For all of these reasons, I am not persuaded that it is appropriate to make a pseudonym order in this case, and I propose to lift the order that I made closing this court and restricting the publication of anything that has occurred in court this morning.  What has occurred here this morning shall be deemed to have occurred in open court and may be reported or openly discussed.  The application is refused.

---