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…

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 JD v ZYX

Details

AGLC: JD v ZYX [2021] WASCA 72
Case: [2021] WASCA 72
Decision Date

CaseChat Overview and Summary

This appeal concerns the suppression of the identities of the parties in a civil claim in the District Court of Western Australia. The appeal was heard by Beech JA in the Court of Appeal. The appellant, JD, sought an order that the suppression orders made in the primary proceedings in the District Court carry over into the appeal proceedings to the Court of Appeal. The suppression orders in the primary proceedings had been made to anonymise the parties and to prevent the publication of any information that might identify them.

The legal issues the court was required to decide were whether the suppression orders made in the primary proceedings should be carried over into the appeal proceedings and whether such orders were necessary to preserve the effect of the suppression orders made in the primary proceedings. The court considered the principle of open justice and the exceptions to it, particularly in cases involving allegations of child sexual abuse. The court noted the strong public policy reasons for why a plaintiff's identity should not be disclosed in cases involving child sexual abuse allegations and held that the suppression orders should be made to preserve the efficacy of the orders made in the District Court.

The court found that the suppression orders should be made in the appeal proceedings to preserve the effect of the suppression orders made in the primary proceedings. The court held that if no orders were 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. The court made orders suppressing the parties' identity in the appeal proceedings to preserve the effect of the suppression orders made in the District Court.

The final orders made by the Court of Appeal were that the appellant's name be anonymised and that the appellant continue these appeal proceedings under the pseudonym 'JD' used in the court 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. All documents filed in these appeal proceedings shall refer to the appellant and the first respondent by their pseudonyms. Publication is prohibited of any report of the commencement of these appeal proceedings, the hearing of this appeal together with all documents filed in relation to the appeal, any documents filed in this appeal or any information derived from them, and any interlocutory hearing in this appeal, to the extent only that publication might tend to identify the appellant and the first respondent. 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. 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.

Orders