Isaacman v King

[2024] NSWSC 1291

Supreme Court

New South Wales

Medium Neutral Citation:

Isaacman v King [2024] NSWSC 1291

Hearing dates:

12 August 2024

Date of orders:

18 October 2024

Decision date:

18 October 2024

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1) Order, pursuant to Rule 6.6(2) of the Uniform Civil Procedure Rules 2005 (“UCPR”) that these proceedings continue on pleadings.

(2) Order, pursuant to Rule 6.6(3) of the UCPR that the plaintiff file and serve any proposed Statement of Claim on the defendant within 21 days of the date of this judgment.

(3) Order, pursuant to Rule 10.6(1) of the UCPR that service of any Statement of Claim on the defendant is to occur in accordance with the defendant’s agreement upon her solicitor, Rachael McKendrick or Robinson Gill, Lawyers, Box Hill, Victoria.

(4)   Order that the Amended Notice of Motion filed on 20 June 2024 be otherwise dismissed.

(5)   Order the plaintiff to bear his own costs of the proceedings to date.

Catchwords:

CIVIL PROCEDURE – Jurisdiction – Whether the Court has jurisdiction – Court has jurisdiction on the basis that the defendant was present in Australia when the Statement of Claim was filed.

CIVIL PROCEDURE – Pleading – Form and content of pleading – Defects – Where plaintiff commenced proceedings using pseudonyms for the plaintiff and the defendant, without leave of the Court – Whether suppression and pseudonym orders should be made – Court not persuaded to make suppression and pseudonym orders.

CIVIL PROCEDURE – Service – Personal service – Whether effected – Personal service was effected – No requirement for substituted service.

Legislation Cited:

Civil Procedure Act 2005

Court Suppression and Non‑Publication Orders Act 2010

Rules of the Supreme Court 1971

Service and Execution of Process Act 1992 (Cth)

Supreme Court Act 1935 (WA)

Supreme Court Act 1970

Uniform Civil Procedure Rules 2005

Cases Cited:

Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; (2015) 255 CLR 46

DRJ v Commissioner of Victims Rights [2020] NSWCA 136

HT v The Queen [2019] HCA 40; (2019) 93 ALJR 1307

Laurie v Carroll (1957) 98 CLR 310

Rinehart v Welker [2011] NSWCA 403; (2011) 93 NSWLR 311

Rinehart v Welker [2011] NSWCA 403; (2011) 93 NSWLR 311

TK v Australian Red Cross Society (1989) 1 WAR 335

Texts Cited:

Dicey: Conflict of Laws 6th ed (1949)

Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, American Psychiatric Association

Category:

Principal judgment

Parties:

Steven Isaacman (P)
Meaghan King (D)

Representation:

Counsel:
W R Chan
Ex Parte

Solicitors:
Glissan & Associates (P)

File Number(s):

2024/40601

Publication restriction:

Not Applicable

JUDGMENT

1. On 1 February 2024, the plaintiff, who gave himself the pseudonym “AB”, commenced proceedings, by way of Summons, against a female defendant to whom he gave the pseudonym “CD”.

2. The Summons claimed interim orders and the following by way of final relief:

1. Damages, including punitive damages;

2. Interest;

3. Costs.

3. Together with the Summons, a brief affidavit was filed which affirmed the existence of the facts upon which the plaintiff’s claims were based. It also briefly addressed the plaintiff’s desire to be identified by a pseudonym. He said:

“I suffer from an anxiety disorder and fear damage to my professional reputation if my name is revealed in court documents.”

4. The plaintiff attached a Statement of Claim as an exhibit to the Summons.

The Proposed Statement of Claim

5. The proposed pleading alleges that in or about January 2019, in the State of New York in the United States of America, the defendant represented to the plaintiff that she did not have, and had never positive tested for, any sexually transmitted disease. The representation was said to have been made orally. Thereafter, for a period of about three and a half years, the plaintiff pleads that, having relied upon those January 2019 representations, he engaged in sexual intercourse with the defendant in the State of New York, and maintained a monogamous sexual relationship with her.

6. In particular, the plaintiff pleads a period of sexual intercourse with the defendant which occurred in the first week of October 2021 in which he says he partook, based upon the January 2019 representations.

7. The plaintiff pleads that in October 2021 he was diagnosed with the Herpes Simplex Virus Type 2 (“HSV-2 virus”) which he alleges he contracted from the defendant in the first week of October 2021.

8. The plaintiff then pleads that the defendant, on two occasions, later in October 2021 and in June 2022, made admissions about her state of knowledge with respect to being a carrier of the HSV–2 virus. One such admission was said to have been made in New York. The other such admission was said to have been made in the State of Victoria.

9. The plaintiff pleads a cause of action arising under the law of New York by reason of the provisions of s 2307 of the Public Law. He also pleads a cause of action arising under the common law of the State of New York.

10. The reference in the pleadings to the “Public Law” of New York seems to include a reference to the Public Health Law of the State of New York. Insofar as s 2307 is concerned, the description of the law seems to be used interchangeably.

11. He pleads that as a consequence of the sexual intercourse engaged in and the consequential infection, he has suffered loss and damage. The plaintiff claims that loss and damage by reason of the tort of negligence.

12. The plaintiff also pleads fraudulent misrepresentation by the defendant with respect to her January 2019 representations. He claims they amounted to fraudulent misrepresentation under the common law of the State of New York. He pleads a further action arising under the common law of the State of New York by way of fraudulent concealment. He also pleads a further action arising under the Common Law of New York by way of battery.

13. His claim for damages is pleaded as arising wholly under the law of New York. He pleads that the defendant is liable to him for compensatory damages for both economic and non-economic loss and also for punitive damages because the defendant’s tortious act was:

“a.   intentional and deliberate;

b.   has circumstances of aggravation and outrage;

c.   was fraudulent and of evil motive;

d.   in such conscious disregard of the plaintiff’s right, that it is deemed wilful and wanton; or

e.   any combination of the above.”

Affidavit of Psychologist

14. The plaintiff also filed an affidavit of his treating psychologist, who is apparently based in San Diego in the State of California. It is not clear that the plaintiff has ever lived in, or worked in, San Diego. The affidavit attached a report from the treating psychologist. The report was dated in December 2023 and noted that the psychologist had been treating the plaintiff for “several years”. The psychologist expressed the view that the plaintiff suffered from an anxiety disorder and:

“… fears damage to his professional reputation if his name is revealed in court documents.”

15. The psychologist also noted that the plaintiff had told him on a number of occasions that he was unwilling to participate in any legal action unless any lawsuit could be commenced anonymously or with the use of pseudonyms. He concluded in this way in describing the nature of the anxiety disorder:

“It is a fear-based anxiety disorder manifesting in a degenerative emotional and physical condition. Without a pseudonym order, the psychological harm Stephen may suffer would affect his ability to function professionally and personally.”

16. The conclusion is not expressed to relate to the location in which legal proceedings may be brought.

Foreign Law Notice

17. Accompanying the Summons and the two affidavits to which I have referred is a Foreign Law Notice provided pursuant to r 6.43 of the Uniform Civil Procedure Rules 2005 (“the UCPR”). That Notice records New York law as relied upon by the plaintiff. It is apparent from that Notice that the principal provision of the statutory law of New York is s 2307 of the Public Law, which is categorised as a criminal statute.

18. The statement of Foreign Law then enunciates the Common Law actions arising from that criminal offence.

Amended Notice of Motion

19. On 20 June 2024, the plaintiff filed an Amended Notice of Motion, which came before the Court for determination. The plaintiff sought that it be heard in the absence of the public. It was heard in open court.

20. The Amended Motion sought relief with respect to the requirement for personal service of the proceedings as a whole and also of the Amended Notice of Motion by way of provision for substituted service. It also sought various orders under the Court Suppression and Non‑Publication Orders Act 2010 (“the Suppression Act”). It sought other orders with respect to the use of a pseudonym in the proceedings.

21. When the proceedings were called on in the Duty List, the Court invited counsel for the applicant on the Amended Notice of Motion to identify the basis upon which the Court had jurisdiction to hear and make orders with respect to a claim between a citizen and resident of the USA against a person alleged to be ordinarily resident in Victoria, with respect to a claim for damages arising under the law of New York, in circumstances where, on the pleadings and other material before the Court, if a cause of action in tort had arisen, it had arisen entirely in New York. The plaintiff had suffered no damage in NSW, and at least on the material then available, had not ever been to Australia. There was also no suggestion that the defendant lived at any time in New South Wales.

22. The Court indicated, particularly in the absence of any urgency, that it would not make any orders at that time but would provide the plaintiff with an opportunity to establish, at least at a prima facie level, that the Court had jurisdiction to hear and determine the proceedings and to make orders of the kind that were being sought.

Jurisdiction of the Court

23. It is necessary to form a view that this Court has jurisdiction in this matter. Unless it does, then there would be no proper basis for it to make any orders at all except to dismiss the proceeding.

24. Necessarily, any view formed at this stage is not a final one. That is because the Court does not have the benefit of a contradictor, nor does it have all of the evidence which may ultimately be adduced. The level of satisfaction as to jurisdiction is, at this stage, a prima facie one. Namely, on the basis of what is known presently, does it appear that the Court has jurisdiction?

25. I note that this claim is an in personam claim for damages against the defendant.

26. In Laurie v Carroll (1958) 98 CLR 310 at p 323, the Court, referring to actions in personam, said:

“The defendant must be amendable or answerable to the command of the writ. His amenability depended and still primarily depends upon nothing but presence in the jurisdiction.”

27. The Court quoted with approval this statement from Dicey: Conflict of Laws 6^th ed (1949) p 172:

“The service of the writ, or something equivalent thereto, is absolutely essential as the foundation of the Court’s jurisdiction. Where a writ cannot legally be served upon a defendant, the court can exercise no jurisdiction over him. In an action in personam the converse of this statement holds good, and wherever a defendant can be legally served with a writ, there the court, on service being effected has jurisdiction to entertain an action against him. Hence, in an action in personam, the rules as to the legal service of a writ define the limits of the court’s jurisdiction.”

28. On the evidence before the Court, the defendant was in Australia, and I am satisfied in Victoria at the time when the Statement of Claim was filed in this Court. The UCPR permitted originating process in this Court to be served outside New South Wales and in any State of the Commonwealth.

29. I am satisfied to the required degree that the defendant was amenable to the service of the originating process, and that this Court has the necessary jurisdiction to make (or decline to make) any of the orders sought by the plaintiff.

Irregularities of Pleading

30. The first irregularity arises from the commencement of the proceedings by a Summons. Whilst r 6.2 of the UCPR permits proceedings to be commenced by the filing of either a Statement of Claim or a Summons, r 6.3 of the UCPR mandates that where there is a claim for relief for damages:

“… for breach of duty (however arising) and the damages claimed consist of or include –

…

(ii)   damages in respect of personal injuries to any person …”,

proceedings must be commenced by Statement of Claim.

31. There is no doubt that having regard to the nature of the claim articulated by the plaintiff, he was required to commence proceedings by the filing of a Statement of Claim.

32. Thus, the commencement of proceedings by a Summons was, and is, an irregularity. Rule 6.6 of the UCPR provides that although incorrectly commenced, the proceedings are nevertheless taken to have been duly commenced as from the date of the filing of the Summons and that the Court may make an order that the proceedings continue on pleadings.

33. In my view, such an order is the appropriate one for these proceedings and ought be made.

34. The second irregularity is that the plaintiff commenced proceedings without recording his name or any other identity details on the Summons which was the originating process. The consequence of this is that the Court could not know from the Summons, who the plaintiff was. Having regard to the obligations on a party generally, and in particular those arising from s 56 of the Civil Procedure Act 2005, it is obviously essential to identify a party in their originating process unless the Court grants leave to proceed in a different way.

35. That such a position is irregular is obvious. The Court is entitled to know and requires, by reference to the approved forms under the UCPR, that a plaintiff identify themselves as an individual, provides sufficient details for the purposes of identification including but not limited to their address, whether any lawyer is appointed to represent them and if so, that lawyer’s address. The plaintiff is required to provide an address for service.

36. Not only do the forms require it, but many of the provisions in the UCPR operate on the basis that a party is so identified. One example of many is r 6.29 of the UCPR which empowers the Court to make an order that “a person” be removed as a party in the circumstances set out in that rule. But if the Court does not know who the person is, such an order could not be made. Another example is r 6.31, which deals with the way in which a Court may act upon the death of a party to replace the deceased. To give effect to this rule, the Court must know the name and identity of the party because otherwise it would not know whether such a party was or was not deceased.

37. As well, the Court’s power to punish for contempt depends upon the Court knowing the identity of the individual whose conduct is called into question. Commonly, a person said to be in contempt of the Court is one of the parties. If that party is the plaintiff and has not been identified, then the Court cannot proceed on a matter which potentially involves a contempt because it does not know accurately the identity of that party.

38. As well, without knowing the name and identification details of a party, a Court has no way of ensuring that the person said to be described by a pseudonym is in fact a real person.

39. These are sufficient reasons to indicate why it is unacceptable for proceedings to be commenced, other than by leave of the Court first being given, by a party unilaterally assigning to themselves a pseudonym.

40. That is what has occurred here.

41. Counsel for the plaintiff submitted that there was no irregularity because:

1. the defendant would by reading the pleadings and the affidavit material, know who the plaintiff was. So much can be accepted in this case. However, it does not provide a reason why the plaintiff is entitled to commence proceedings, without the leave of the Court, by a pseudonym; and

2. there was a risk of disclosure of the plaintiff’s name, and publicity accorded to the proceedings in circumstances where his full name is contained on, and may be searchable in, the Court file. It was said that a disclosure of a party’s name anywhere in or on a Court file will enable those authorised to search the Court file to ascertain the name of the plaintiff.

42. However, if there is a proper basis under the Suppression Act, or in the exercise of the Court’s inherent jurisdiction to make orders which have the effect of anonymising a party or precluding publication of their name and identity details, and the fact that a file may in one document or another contain a person’s full name, will not reveal that name to the world at large when such orders have been made.

43. Neither of these arguments are persuasive enough to justify a party commencing proceedings unilaterally without the Court’s leave by the use of a pseudonym, as occurred in this case.

44. Finally, counsel submitted that the plaintiff was following the procedure set out in TK v Australian Red Cross Society (1989) 1 WAR 335 (“TK”). In that judgment, Malcolm CJ was approached in Chambers in circumstances where neither the relevant Supreme Court Act 1935 (WA) nor the Rules of the Supreme Court 1971 made any specific provision for the procedure to be followed with respect to the application which was being made. Nor was there at that time equivalent legislation to the Suppression Act which is presently in force in NSW. The applicants were individuals suffering from the severe hereditary bleeding disease, Haemophilia, and who had contracted the Human Immuno‑Deficiency Virus (“HIV”) from the use of a blood plasma concentrate provided by the Australian Red Cross Society. The individuals relied upon evidence, including expert evidence, as to their illness which established that there was a “very real potential” that individuals who are publicly known to have tested HIV positive “… might be ostracised within the community, suffer discrimination and have social situations made extremely difficult for them”. This was at a time when it was notorious in Australian communities that people, including children, who were infected with HIV were regularly shunned in the community and were the subject of appalling acts of public discrimination.

45. Malcolm CJ was persuaded that any public knowledge of the identity of the proposed plaintiff in each of the cases would be likely to defeat the paramount object of the Courts “… which was to do justice according to law”.

46. Accordingly, his Honour made orders that each of the plaintiffs be at liberty to commence their proposed proceedings by the use of a pseudonym, that all documents filed and served subsequently in the proceedings could identify them by reference to their pseudonym except for “… the jurat of the original of any affidavit required to be sworn by the plaintiff”. The plaintiff’s solicitors were required to serve upon the defendant at the time of the service of the originating process both a copy of the order made by Malcolm CJ prior to the commencement of the proceedings, and a written notice of the name and address of the plaintiff. His Honour then made orders prohibiting any publication of a number of matters, to the extent that such publication might tend to identify the plaintiff. The affidavit upon which the application in Chambers was based and which contained the identification details of each of the plaintiffs, was ordered to be placed in a sealed envelope.

47. Shortly put, the procedure followed was that the Court was approached prior to the commencement of proceedings with an application that proceedings could be commenced in a particular way which did not comply with the rules of Court. As Malcolm CJ found, there can be no doubt that a Court has the power in its inherent jurisdiction to excuse strict compliance with rules of Court in such circumstances as there existed.

42. But that was not the procedure adopted here, which was to unilaterally use a pseudonym for both the plaintiff and the defendant. Whether or not a pseudonym would have been accorded to the plaintiff had the procedure in TK been followed in this Court is unnecessary to determine because that process did not happen.

43. However, before proceeding to consider making any orders with respect to the rectification of this irregularity and what orders would be appropriate, it is necessary to consider whether, on the material before the Court, the Court would be persuaded to grant pseudonym and non-publication orders of the kind sought.

44. That is a matter to which it will be necessary to turn later in this judgment.

Service

51. The evidence before the Court demonstrates that various attempts have been made over a period of many months by the solicitors for the plaintiff to serve the defendant personally with the filed court documents.

52. Service of originating process is required to be effected in person: r 10.20(2)(a) of the UCPR. By the time proceedings came before the Court, personal service had not been effected although it is clear that at some point the proceedings had come to the attention of the defendant because on 24 July 2024, Ms Rachael McKendrick, a solicitor from the firm Robinson Gill Lawyers, informed the solicitor for the plaintiff that that firm had received instructions from the defendant to act for her in circumstances where she had received correspondence and a bundle of documents from the plaintiff’s solicitors.

53. Ms McKendrick and her firm are located in Box Hill in Victoria. Ms McKendrick practises there. The firm does not have any offices in Sydney.

54. Ms McKendrick informed the plaintiff’s solicitor later that day that she did not have instructions to file an appearance (a course which had been proposed by the plaintiff’s solicitor) and she noted that the defendant was not in Australia and had not been personally served with any documents. The following morning, Ms McKendrick informed the plaintiff’s solicitors in an email of the following:

“Please be advised that we now have instructions to accept service in this matter. … Although we are instructed to accept service, we also have instructions to bring an application to dismiss your client’s claim on the basis that New South Wales is the wrong jurisdiction.

We note that:

1.   Our client is currently overseas but is ordinarily a resident of Victoria;

2.   The plaintiff is, and was at all relevant times, residing in the USA (and we expect, an ordinary resident thereof);

3.   …

4.   The pleadings refer only to a cause of action arising out of or in relation to ‘section 2307 of the Public Law’ (being the ‘law of New York’) and ‘the Common Law of the [sic] New York, USA’.

5.   The pleadings state that the occurrences in paragraph 5 ‘occurred in the State of New York, USA’.

In light of the above, it is unclear on what basis your client could assert that New South Wales is the proper forum for this case to be heard (when neither party resides or has any connection with NSW, and the pleadings refer only to matters occurring overseas and international law).

…

We advise for completeness that although we hold instructions to accept service, we maintain an objection to the validity of the proceedings in NSW and the acceptance of service is not waiving our client’s rights to maintain and make those objections.”

55. Rule 10.6 of the UCPR permits service of any document, including originating process, in accordance with any agreement, acknowledgement or undertaking for such service. The rule is in the following form:

“10.6   Service in accordance with agreement between parties

1.   In any proceedings, any document (including originating process) may be served by one party on another (whether in New South Wales or elsewhere) in accordance with any agreement, acknowledgment or undertaking by which the party to be served is bound.

…

2.   Service in accordance subrule (1) is taken for all purposes (including for the purposes of any rule requiring personal service) to constitute sufficient service.”

56. I regard the notification by the Victorian solicitors for the defendant, which has been set out above, to constitute an agreement, acknowledgment or undertaking in accordance with r 10.6(1) of the UCPR even though there is no concession that the Supreme Court of NSW is appropriately seized of jurisdiction, nor that it is the proper or appropriate forum.

57. Accordingly, in my view, the orders for substituted service which are sought, are not required. Formal service of all relevant documents can now take place by sending the documents to the solicitor for the defendant.

58. I note in this respect that r 10.3(2) of the UCPR states that service of originating process can occur anywhere in Australia, whether in NSW or elsewhere. Rule 10.3(3) of the UCPR provides that service of such originating process in Australia but outside NSW must bear a statement of the standard kind indicating whether a plaintiff intended to proceed in accordance with the Service and Execution of Process Act 1992 (Cth), or in accordance with the UCPR.

Suppression Orders and Allocation of Pseudonyms

59. The orders which are sought by the plaintiff with respect to suppression and non‑publication derive from the Suppression Act. The Act does not limit or otherwise affect any inherent jurisdiction which this Court has: s 4. The Suppression Act does not directly provide the power for a Court to mandate the use of a pseudonym in lieu of the name of a party. As such orders can be made in the exercise of the Court’s inherent jurisdiction, it is unnecessary to consider the extent to which a pseudonym may be ordered under the Suppression Act.

60. Section 6 of the Suppression Act makes it mandatory for any Court in deciding whether to make a suppression or a non-publication order to:

“… take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice”.

61. This is a statutory embodiment of the fundamental principle that the administration of justice is a public function. Justice must not only be done but must manifestly be seen to be done: TK at p 336. The circumstances in which a Court, acting at common law, would depart from that fundamental principle “… would need to be very exceptional”: see TK at p 337.

62. Consistently with this fundamental principle, s 8 of the Suppression Act limits the grounds upon which an order by way of suppression or non‑publication can be made. It is relevantly in the following terms:

“8.   Grounds for making an order

1.   A court may make a suppression order or non-publication order on one or more of the following grounds-

a)   the order is necessary to prevent prejudice to the proper administration of justice,

b)   …,

c)   the order is necessary to protect the safety of any person,

d)   …,

e)   it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.”

63. Section 11 of the Suppression Act has the effect that a suppression or non‑publication order applies in NSW only but can be extended to apply anywhere in the Commonwealth of Australia if the Court is satisfied that such a geographic extension is “necessary for achieving the purpose for which the order is made”: s 11(3). There is no provision in the Suppression Act which permits this Court to make an order applicable in any foreign country such as the USA.

64. The principle to be considered was identified in DRJ v Commissioner of Victims Rights [2020] NSWCA 136. Leeming JA (with whom Bell P and Meagher JA agreed) said at [42] this:

“An applicant for an order under the Court Suppression and Non-Publication Orders Act needs to identify the paragraph or paragraphs in s 8 on which he or she relies, the terms of the orders sought, and its duration. That is important, not least, because the order is required explicitly to specify each of those matters.”

65. Earlier, at [40], Leeming JA had said:

“The onus lies on the applicants to demonstrate that an order is ‘necessary’. … The same word in s 50 of the Federal Court of Australia Act 1976 (Cth), was explained in Hogan v Australian Crime Commission [2010] HCA 21 at [30]-[31] thus:

‘As it appears in s 50, “necessary” is a strong word. Hence the point made by Bowen CJ in Australian Broadcasting Commission v Parish, that the collocation of necessity to prevent prejudice to the administration of justice and necessity to prevent prejudice to the security of the Commonwealth “suggests Parliament was not dealing with trivialities”. Further, as indicated earlier in these reasons: (a) s 50 is an example of a provision authorising the Federal Court to make orders for the exercise of its jurisdiction other than in open court as mandated by s 17(1); and (b) “the administration of justice” spoken of in s 50 is that involved in the exercise by the Federal Court of the judicial power of the Commonwealth; this is a more specific discipline than broader notions of the public interest.

It is insufficient that the making or continuity of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some “balancing exercise”, the order appears to have one or more of those characteristics’.”

66. Leeming JA had earlier referred to a decision of Gordon J in HT v The Queen [2019] HCA 40; (2019) 93 ALJR 1307 at [82], where her Honour said, summarising the position:

“Superior courts have an inherent power to suppress the publication or dissemination of material that is on the court record. Any exercise of the discretion to make a suppression or non-publication order starts from the premise of open justice. The court’s discretion is not unbounded. …Thus, except for doing what is reasonably necessary for the purpose of securing the administration of justice, there is no inherent power to prohibit a person from publishing or otherwise disclosing the evidence in a proceeding. Any such prohibition must do no more than is reasonably necessary to achieve the due administration of justice, based on the material before the court.”

67. Although Gordon J was describing suppression or non-publication orders in the context of a Court’s inherent power, there is no reason to think that the principles which her Honour has identified do not have application to the statute under which the current orders are sought.

68. These statements are to be considered against the background that the rationale of the open court principle is that court proceedings should be subjected to public and professional scrutiny, and courts will not act contrary to that principle save in exceptional circumstances: see Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; (2015) 255 CLR 46 at [44] per French CJ, Hayne, Kiefel, Bell and Keane JJ.

69. In Rinehart v Welker [2011] NSWCA 403; (2011) 93 NSWLR 311 at [27], Bathurst CJ and McColl JA expressly identified that it was the intention of the legislation (i.e., the Suppression Act) that such orders should only be made in exceptional circumstances.

70. Shortly put, open hearings are a hallmark of the curial determination of proceedings, and are only to be restricted in exceptional circumstances and only when necessary.

71. In this case, the basis upon which the plaintiff seeks orders under the Suppression Act is to be found in ss 8(1)(a) or 8(1)(c) or 8(1)(e).

72. In that context, he points to the fact that he fears damage to his professional reputation if his name is not suppressed. He points to the opinion of his treating psychologist that without a suppression order for his name and identity details, and the use of a pseudonym order, he would suffer psychological harm which would affect his ability to function professionally and personally.

73. In his submissions, counsel for the plaintiff drew attention to the fact that the plaintiff’s anxiety condition was “continually triggered” by the plaintiff’s infection with HSV-2. He also submitted that the Court should take the opinion of the expert psychologist, that there would be detriment to the plaintiff’s professional well-being as being a reference to reputational harm rather than merely just to actual physical symptoms.

74. Counsel also drew attention in his submissions to the statement by the plaintiff to the expert psychologist, apparently made repeatedly, that the plaintiff was unwilling to file a law‑suit “unless his identity can be concealed”.

75. In addressing the ground set out in s 8(1)(e), counsel made this submission:

“It is necessary in the public interest because if the pseudonym order were not made, the likelihood of this case proceeding is low. It is in the public’s interest that wrongs committed and suffered by others should be properly brought to the Court and to be heard. That is, parties should not be dissuaded from bringing the proceedings to this Court and seeking justice. That is the public interest …”

76. The opinion of the psychologist relied upon has some unusual factors. According to the proposed Statement of Claim, the plaintiff commenced a relationship with the defendant in January 2019. His infection with HSV-2 was diagnosed in October 2021, after a period from 1 October 2021 to 8 October 2021, when the plaintiff and defendant engaged in sexual intercourse.

77. According to the psychologist’s report, he commenced treating the plaintiff in June 2021 “… to help him with relationship issues and manage his anxiety more effectively”. He also notes that it was whilst the plaintiff was “… under my care and meeting with me on a regular basis …” that the plaintiff began a relationship with the defendant. The psychologist also opines that the plaintiff’s infection has caused him “… severe physical and emotional distress”.

78. It can be readily accepted for the purposes of this application that infection with the HSV-2 virus has caused the plaintiff physical and emotional distress. After all, that is the claim he makes for damages in the proceedings.

79. However, it is not readily apparent from the material what the basis is for the psychologist’s opinion that public knowledge of this infection will have an impact on the plaintiff’s professional reputation and career, as well as his social life. It is to be kept in mind that as the plaintiff does not live or work in Australia, the damage to his reputation, career and social life which he fears, must relate to knowledge which becomes known in the United States of America, which is beyond the geographical limit of any suppression order which this Court can make.

80. As well, I note that as recorded in DSM-5, an anxiety disorder such as that diagnosed for the plaintiff has a recognised feature that individuals with anxiety disorders “… typically over-estimate the damage in situations they fear or avoid”: Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, American Psychiatric Association p 189. Whether the psychologist has given any consideration to this phenomenon is not revealed.

81. The evidence before the Court does not reveal what the plaintiff’s professional occupation is. The evidence reveals only that he lives in the State of New York. I would infer that his business or his occupation is based in New York. The evidence does not demonstrate that he has been to Australia, nor that his business or occupation has any connection with Australia. It is not suggested that he has any social contacts with anyone in Australia (apart from past contact with the defendant), nor does the evidence establish that he has any reputation or business standing in Australia.

82. It follows that the fact of his concern for damages to his reputation in business and his personal life must be confined to whatever damages may occur in New York or, perhaps, the United States of America. But no suppression order that this Court can make can prevent that damage because there can be no effective order beyond the Commonwealth of Australia. In those circumstances, it is not possible to conclude that it is “necessary” or that the circumstances are exceptional, such that the Court should make an order which is unlikely to have the wished for effect.

83. Similarly, any pseudonym orders will not be effective in the circumstances presented unless there is a suppression order on the plaintiff’s name and his identity.

84. I am wholly unpersuaded that the plaintiff has established any of the grounds to support an order under the Suppression Act as sought, nor that the Court ought make a pseudonym order.

85. Particularly is this so, in the circumstances here, where there is no connection whatsoever between either of the parties, and the pleaded cause of action and the State of New South Wales. There is simply no reason to make any order which sets at nought the primary objective of the administrative of justice in this State which is to safeguard the public interest in open justice.

86. If the plaintiff is unwilling to litigate these proceedings without a pseudonym or a suppression order, he has other jurisdictions in which he can bring these claims. Certainly, the appropriate courts in the State of New York, and in the State of Victoria clearly have jurisdiction and provide alternative forums for these proceedings.

Conclusion

87. The plaintiff has succeeded in persuading the Court to order that any irregularity in the commencement of the proceedings be corrected.

88. The Court notes that service of any originating process can occur by delivery to the lawyers for the defendant.

89. The Court will not otherwise grant the relief sought by the plaintiff.

Orders

90. I make the following orders:

1. Order, pursuant to Rule 6.6(2) of the Uniform Civil Procedure Rules 2005 (“UCPR”) that these proceedings continue on pleadings.

2. Order, pursuant to Rule 6.6(3) of the UCPR that the plaintiff file and serve any proposed Statement of Claim on the defendant within 21 days of the date of this judgment.

3. Order, pursuant to Rule 10.6(1) of the UCPR that service of any Statement of Claim on the defendant is to occur in accordance with the defendant’s agreement upon her solicitor, Rachael McKendrick or Robinson Gill, Lawyers, Box Hill, Victoria.

4. Order that the Amended Notice of Motion filed on 20 June 2024 be otherwise dismissed.

5. Order the plaintiff to bear his own costs of the proceedings to date.

**********

Decision last updated: 01 November 2024