JD v ZYX
[2021] WASCA 72
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: JD -v- ZYX [2021] WASCA 72
CORAM: BUSS P
BEECH JA
HEARD: ON THE PAPERS
DELIVERED : 20 APRIL 2021
PUBLISHED : 27 APRIL 2021
FILE NO/S: CACV 24 of 2021
BETWEEN: JD
Appellant
AND
ZYX
First Respondent
WA NEWSPAPERS LTD & CHANNEL 7 PERTH PTY LTD
Second Respondents
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BIRMINGHAM DCJ
Citation: ZYX v JD [No 2] [2021] WADC 20
File Number : CIV 847 of 2019
Catchwords:
Courts and judges - Principle of open justice and suppression orders - Application for suppression orders in appeal proceedings - Where primary proceedings are a civil claim concerning allegations of child sexual abuse - Where suppression orders have been made in the primary proceedings to anonymise the parties' identity - Whether suppression orders should be made in the appeal proceedings to preserve the effect of the suppression orders made in the primary proceedings
Legislation:
Nil
Result:
Orders suppressing parties' identity made
Category: B
Representation:
Counsel:
| Appellant | : | No Appearance |
| First Respondent | : | No Appearance |
| Second Respondents | : | No Appearance |
Solicitors:
| Appellant | : | M J McPhee Barrister & Solicitor |
| First Respondent | : | Rightside Legal |
| Second Respondents | : | Steedman Stagg Lawyers |
Case(s) referred to in decision(s):
ABC v D1 [2007] VSC 480
XY v WA Country Health Service [No 2] [2016] WASC 245
ZYX v JD [2019] WADC 164; (2019) 98 SR (WA) 367
REASONS OF THE COURT:
Introduction
On 20 April 2021, we made orders by consent suppressing the identities of the parties to this appeal, and other related orders, essentially to preserve the effect of suppression orders made by the District Court in the primary proceedings. We made orders in the following terms:[1]
[1] The redactions in pars 4 and 7 have been made in accordance with par 6, to preserve the efficacy of the orders.
1.The Appellant's name be anonymised and the Appellant continue these appeal proceedings under the pseudonym 'JD' used in the court below.
2.Subject to paragraph 7 below, the First Respondent's name in these appeal proceedings be anonymised and the First Respondent continue in these appeal proceedings under the pseudonym 'ZYX' used in the court below.
3.All documents filed in these appeal proceedings shall refer to the Appellant and the First Respondent by their pseudonyms.
4.Subject to paragraph 7 below, publication is prohibited of any report of:
(a) the commencement of these appeal proceedings;
(b)the hearing of this appeal together with all documents filed in relation to the appeal;
(c)any documents filed in this appeal or any information derived from them; and
(d) any interlocutory hearing in this appeal,
to the extent only that publication might tend to identify the Appellant and the First Respondent (including a prohibition against publication [redacted]).
5.A non‑party is not entitled to search for, inspect or receive copies of any document or information in these appeal proceedings without the approval of a Court of Appeal Registrar to ensure such document or information will not lead to the identification of the Appellant and the First Respondent.
6.Any published reasons for decision in this appeal, or on any application in this appeal, shall be published using the Court of Appeal approved pseudonyms for the Appellant and the First Respondent and redacting references in any such reasons which may lead to the identification of the Appellant and the First Respondent.
7.Paragraph 4 above which prohibits the publication of the name of the Appellant and/or [redacted] shall cease to operate upon the final judgment of the District Court claim either in the Court of Appeal or the District Court, whichever is the later.
8.Paragraphs 2 to 8 of the orders of Sleight CJDC made in the court below on 26 September 2019 continue to apply.
9.Paragraphs 6 and 7 of the orders of Birmingham DCJ made in the court below on 18 March 2021 continue to apply.
10.The hearing of the Appellant's Suppression Order Application otherwise stand adjourned pending the completion of the appeal.
11.The costs of the Suppression Order Application as between the Appellant and the First Respondent be costs as between those parties in the appeal.
12.There be no order as to costs in respect of the Interveners (Second Respondents) in connection with the Suppression Order Application.
13.The hearing of the Suppression Order Application listed for 23 April 2021 be vacated.
14.The parties have liberty to apply on the giving of 72 hours' notice.
We consider it appropriate to provide short reasons for our orders notwithstanding that they were made by consent, given the significance of the principle of open justice. These are our reasons.
Background
The first respondent commenced the primary proceedings against the appellant, who is a reasonably well‑known person in the community, claiming damages for alleged child sexual abuse by the appellant against the first respondent. The first respondent pleads that the appellant sexually abused her in the 1960s and 1970s, when the first respondent was between the ages of 12 and 17 years old.
In 2019, the appellant, as defendant in the primary proceedings, sought, relevantly for present purposes, a stay of the action and orders suppressing the parties' identity and preventing access to the file of the action without obtaining leave of a judge by anyone but the parties or their legal representatives.
The second respondents obtained leave to be heard as interveners on the application for suppression orders.
The appellant's application was heard by Sleight CJDC. His Honour published reasons for dismissing the application to strike out or stay the action, but made suppression orders suppressing, among other things, both parties' identity.[2]
[2] ZYX v JD [2019] WADC 164; (2019) 98 SR (WA) 367 (Suppression Order Reasons).
Sleight CJDC's orders were, relevantly, as follows:[3]
[3] The redactions in pars 5 and 8 have been made in accordance with par 6 of this court's orders of 20 April 2021.
IT IS ORDERED THAT:
1.The Defendant's application for striking out the action or a stay of the action be and is hereby dismissed.
2.The Plaintiff's name be anonymised and the Plaintiff continue the proceedings under a pseudonym approved by the Court.
3.Subject to Order 8 below, the Defendant's name in these proceedings be anonymised and the Defendant continue these proceedings under a pseudonym approved by the Court.
4.All court documents filed in the proceedings shall henceforth refer to the Plaintiff and Defendant by a pseudonym.
5.Subject to Order 8 below publication is prohibited of any report of:
(a)the commencement of the proceedings against the Defendant by the Plaintiff;
(b)the hearing of the application for a stay of proceedings and a suppression order together with all documents filed in relation to those applications;
(c)the Writ, the endorsement of claim and any other subsequent documents in the proceedings or any information derived therefrom;
(d) any interlocutory hearing in the proceedings; and
(e) the trial in the proceedings,
to the extent only that publication might tend to identify the Plaintiff and the Defendant (including a prohibition against the publication which [redacted]).
6.Notwithstanding r 71 of the [District Court Rules 2005 (WA)] a non‑party is not entitled to search for, inspect or receive copies of any of the documents or information in these proceedings without the approval of a Registrar of the Court to ensure that such documents or information will not lead to the identification of the Plaintiff and the Defendant.
7.The reasons for the decision in this matter shall be published using the pseudonyms for the Plaintiff and the Defendant approved by the Court and redacting references in the reasons which may lead to the identification of the Plaintiff and the Defendant.
8.The above orders which prohibit the name of the Defendant and/or [redacted] shall cease to operate once the final judgment of the Court is delivered or further order of the Court.
Orders 2 ‑ 8 of these orders, formed the essential basis of the suppression orders which the appellant sought to transpose to his appeal in this court. We will refer to those orders as the 'Suppression Orders'.
In substance, the Suppression Orders have been maintained in the District Court proceedings since they were made. On 30 July 2020, they were extended in scope in a manner that is sufficiently reflected, for present purposes, in the orders subsequently made on 18 March 2021, set out in [12] below.
On 11 May 2020, the appellant made a second application to stay the first respondent's action against him. It is not necessary to detail the specific ground on which it was found that it was appropriate to allow the appellant as the defendant in the primary proceedings to make a further application.
On 18 March 2021, the primary judge, Birmingham DCJ, published reasons refusing the application for a stay. That decision is the subject of the substantive appeal in these proceedings.
In dismissing the second application for a stay, the primary judge maintained, subject to a minor amendment, the Suppression Orders and maintained the extension of the Suppression Orders made on 30 July 2020. The primary judge's orders of 18 March 2021 were as follows:
IT IS ORDERED that:
1.The Defendant's Second Application for an Order Permanently Staying the Action is dismissed[.]
2.The judgment and reasons, save for the fact of the outcome of the application, be suppressed until final judgment of the action or further order of the Court.
3.Within 14 days the parties confer on all interlocutory matters[.]
4.The matter thereafter be listed for directions before a Judge of the Court[.]
5.The Plaintiff pay the Defendant's costs of this application, such costs to be taxed and offset against the costs awarded in favour of the Plaintiff by order of His Honour the Chief Judge made 29 November 2019, in any event upon judgment and/or final resolution of the action.
6.That paragraph 6 of the orders made by His Honour the Chief Judge on 26 September 2019 be varied, such that:
6.Notwithstanding r 71 of the [District Court Rules] a non‑party is not entitled to search for, inspect or receive copies of any documents or information in these proceedings without the approval of a Judge of the Court to ensure that such documents or information will not lead to the identification of the Plaintiff and the Defendant.
7.The suppression order made on 30 July 2020 remains, that together with paragraph 5 in the orders made by Chief Judge Sleight on 26 September 2019, until after final judgment is delivered or further order of the Court:
(i)Publication is prohibited of any report naming any witness, or which might tend to identify any witness or potential witness (which includes the reporting of the nature of the relationship of that witness to either of the parties) who is named during the application for a stay of the action and any other interlocutory applications before the Court; and
(ii)That the identity of the Deponent of the affidavit marked as document 177 on the District Court List of Documents be anonymised and hereafter referred to as TT.
Application to 'carry over' Suppression Orders in the District Court
The appellant applied to 'carry over' the Suppression Orders made in the District Court to the proceedings in this court. The application was framed, relevantly, in the following terms:
The Appellant applies for ‑
1.An order pending the appeal that the suppression order currently applicable in the District Court Action 874 of 2019 carry over … to the Court of Appeal and the hearing of this interlocutory appeal, and that the same terms apply as to duration of such suppression order, namely that it operate until further order or judgment in the District Court or Court of Appeal.
It is convenient to outline the reasons given by Sleight CJDC.
The reasons for the Suppression Orders in the primary proceedings
It is not necessary to comprehensively outline Sleight CJDC's reasons concerning the Suppression Orders. For present purposes, it is sufficient to note the following.
His Honour summarised the legal principles concerning the principle of open justice, including the following:[4]
(1)The principle of open justice is a fundamental principle of law, the primary object of which is to promote public confidence in and respect for the administration of justice.
(2)An order departing from the fundamental rule that the administration of justice must take place in open court should only be made where it is reasonably necessary in order to secure the proper administration of justice in the proceedings before it.
(3)The starting point when considering whether a suppression order should be made is that the well‑established and strong presumption of open justice favours the publication of court proceedings, except in exceptional circumstances.
(4)There are a number of recognised exceptions to the open justice principle. Generally, embarrassment and stress caused by publicity surrounding court proceedings is not in itself sufficient to justify a suppression order, particularly in criminal proceedings.
(5)However, the ultimate purpose or objective of courts is to achieve justice. The presumption in favour of publication is only a means to an end and it will yield if that is necessary to achieve justice.
(6)The application of these principles may differ depending on whether the proceedings are civil or criminal in nature. In this regard the judge noted a number of important differences between criminal and civil proceedings.
[4] Suppression Order Reasons [70] ‑ [81].
For the purposes of this application, we accept the correctness of these principles.
The judge referred to two cases in which the names of one or more of the parties were suppressed:[5] ABC v D1[6] and XY v WA Country Health Service [No 2].[7]
[5] Suppression Order Reasons [82] ‑ [84].
[6] ABC v D1 [2007] VSC 480.
[7] XY v WA Country Health Service [No 2] [2016] WASC 245.
The judge held that the identity of the plaintiff (the first respondent in the appeal) should remain anonymous until further order. In this regard, his Honour noted the strong public policy reasons for why a plaintiff's identity should not be disclosed in cases involving child sexual abuse allegations. Among other things, publishing a plaintiff's identity in a case of that kind is likely to discourage a plaintiff from bringing or continuing proceedings due to embarrassment or distress.
His Honour considered that if the plaintiff's name were anonymised, but the defendant's name were not, there would be a significant imbalance between the parties in that the plaintiff would be able to pursue her claim without suffering the embarrassment of her identity being published in the media, whereas the defendant would be exposed to embarrassment, hostility and loss of reputation as a result of the plaintiff's allegations. His Honour was satisfied, on the evidence before him, that bearing in mind the defendant's reputation in the community, the defendant would be likely to be subjected to an extended period of publicity with some sections of the community being hostile toward the defendant, particularly via social media.
His Honour concluded that the imbalance between the plaintiff and the defendant that would arise if only the plaintiff's identity were anonymised would give the plaintiff an unfair advantage in settlement negotiations, with the result that it was appropriate that the defendant's identity also be suppressed. In this regard, his Honour said as follows:[8]
[T]he defendant may be overwhelmed by the length and continuing publicity the case will attract and seek to settle the action by a payment to the plaintiff regardless of the truth of the allegations. Given the role of negotiations in a civil action, in my opinion, the imbalance created is likely to undermine the administration of justice.
[8] Suppression Order Reasons [94].
Disposition
The appellant submitted that this court should make suppression orders to enable him to apply for leave to appeal and to appeal without losing the benefit of the Suppression Orders in the District Court.[9] He submitted that the purpose of the application is to maintain the status quo.[10]
[9] Appellant's submissions [21].
[10] Appellant's submissions [11].
No party has challenged the Suppression Orders by way of appeal. If no orders are made suppressing the parties' identity in this appeal, the efficacy of the Suppression Orders made in the District Court would be undermined to the point of destruction. In those circumstances, we considered it appropriate to make the orders set out at [1] above, to preserve the efficacy of the orders made in the District Court pending the determination of the primary proceedings.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RC
Associate to the Honourable Justice Beech
27 APRIL 2021
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