Jane Doe v XYZ - [2019] VSC 176

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S ECI 2018 02238

JANE DOE (a pseudonym)	Plaintiff
v
XYZ (a pseudonym)	Defendant

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	19 March 2019
DATE OF JUDGMENT:	25 March 2019
CASE MAY BE CITED AS:	Jane Doe v XYZ
MEDIUM NEUTRAL CITATION:	[2019] VSC 176

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PRACTICE AND PROCEDURE – Inherent jurisdiction of a court to grant a pseudonym order – Application by defendant to be identified by a pseudonym – Identity of the plaintiff protected by a pseudonym order – Overarching purpose of preventing prejudice to the administration of justice – XYZ v State of Victoria & Anor [2016] VSC 339, referred to – Principles of open justice – Circumstances justifying making a pseudonym order – ABC v D1 and Ors; Ex Parte v The Herald Sun & Weekly Times Ltd [2007] VSC 480 and Secretary, Department of Justice and Regulation v Zhong (No 2) [2017] VSCA 19, referred to – Early stage of the proceeding – Not a case of mere embarrassment, distress or invasion of privacy – Real risk of the defendant being deterred from properly defending the proceeding without a pseudonym order – Defendant’s health conditions considered – Risk of plaintiff being identified if no pseudonym order granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S A Lowry	Tait Lawyers
For the Defendant	Mr P Over	Lewenberg & Lewenberg

HER HONOUR:

This is an application by the defendant for what is commonly known as a ‘pseudonym order’, to apply with respect to all court documents, until further order. The application is opposed by the plaintiff. Prior to the issue of the proceeding, the plaintiff obtained, on an ex parte application determined ‘on the papers’, a pseudonym order substantially in the form sought by the defendant.[1]
[1]Order of McMillan J made 12 November 2018.

In her statement of claim, the plaintiff brings a somewhat novel claim. She alleges that she was in a two year relationship with the defendant, who is married with children. She alleges that the defendant represented to her that the relationship was sexually monogamous, such representations having been made in order to induce the plaintiff to have sex with him without prophylactic protection. She alleged that, in fact, the defendant had sex with a number of different people,[2] of different genders, over the course of the relationship, including sex workers, and in some cases did not use prophylactic protection. Particulars of the identity of some of the alleged sexual partners were identified, along with the dates and location of particular occasions whereas the other participants were not identified save for their gender and occupation.
[2]The particulars to paragraph 7 of the statement of claim identify fifteen different people, and include eleven ‘occasions’ over a period of about eight months.

The plaintiff went on to state as follows:

By reason of the matters referred to in the preceding paragraph the apparent consent…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jane Doe v XYZ

Details

AGLC: Jane Doe v XYZ [2019] VSC 176
Case: [2019] VSC 176
Decision Date: 25 March 2019

CaseChat Overview and Summary

The case of Jane Doe v XYZ involved a legal dispute between Jane Doe, the plaintiff, and XYZ, the defendant. The plaintiff sought to protect her identity by applying for a pseudonym order, which was opposed by the defendant. The matter was heard in the Supreme Court of Victoria. The primary issue before the court was whether the defendant should be permitted to use a pseudonym during the proceedings to protect his identity and privacy, thereby balancing this against the principle of open justice.

The court had to determine whether the circumstances justified granting a pseudonym order to the defendant, despite the plaintiff’s anonymity being already protected. The court examined the principles of open justice, the overarching purpose of preventing prejudice to the administration of justice, and relevant case law such as XYZ v State of Victoria & Anor [2016] VSC 339, ABC v D1 and Ors; Ex Parte v The Herald Sun & Weekly Times Ltd [2007] VSC 480, and Secretary, Department of Justice and Regulation v Zhong (No 2) [2017] VSCA 19. The court considered the early stage of the proceeding and the potential real risk of the defendant being deterred from properly defending the proceeding without a pseudonym order. Additionally, the defendant's health conditions and the risk of the plaintiff being identified if the pseudonym order was not granted were also evaluated.

The court ultimately found that the defendant's health conditions and the potential deterrence from properly defending the proceeding constituted sufficient grounds for granting the pseudonym order. The court recognised the real risk of the plaintiff being identified if the order was not granted, and it balanced this against the principle of open justice. The court concluded that the defendant should be allowed to use a pseudonym to protect his identity and privacy during the proceedings. Consequently, the court granted the defendant's application for a pseudonym order.

Orders