Martin v Victoria - [2018] VSC 536

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2017 00480

SARAH MARTIN (a pseudonym)	Plaintiff
v
THE STATE OF VICTORIA	Defendant

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JUDGE:	JOHN DIXON J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	17 September 2018
CASE MAY BE CITED AS:	Martin v Victoria
MEDIUM NEUTRAL CITATION:	[2018] VSC 536

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PRACTICE AND PROCEDURE — Pseudonyms — Application for pseudonym for plaintiff and non-party — Open justice principle — Exceptions —Prevention of prejudice to administration of justice — Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance
For the Defendant	No appearance

HIS HONOUR:

The plaintiff applied to use a pseudonym, and for an order that an individual (‘the non-party individual’) referred to in the statement of claim also be referred to by a pseudonym in this proceeding. The plaintiff also sought orders that those documents currently on the court that identify the plaintiff and/or the non-party individual be sealed up on the court file, not to be opened except in accordance with an order of this Court. The defendant did not oppose the application.

For the reasons which follow, I will grant the application and make the orders set out in paragraph [12] of these reasons.

The plaintiff’s solicitor deposed to the material facts upon which the application is made, and exhibited a proposed statement of claim.[1] I accept and rely on the matters deposed to but will not recite the material facts in these reasons.
[1]Affidavit of Merys Williams dated 7 September 2018.

In RN v The Commonwealth I set out the principles governing applications of this kind.[2] Those principles may be briefly summarised as follows:
[2](2014) 41 VR 699, 702 [12]-[17].

(a) The Open Courts Act 2013 (Vic) does not limit or affect the power of a court to make an order concealing the identify of a person by restricting the way that person is referred to in open court, or by prohibiting or restricting access to the court file.

(b) Pseudonym orders differ from other restrictions on open justice, such as suppression and closed court orders. The public nature of the proceeding and the ability of the media to report on the proceedings will only be restricted as to the identity of the individual given a pseudonym.[3] Accordingly, there is no need for media interests to be heard in respect of making such an order, although breach of such an order may give rise to liability in contempt.
[3](2014) 41 VR 699, 702 [13] citing X v Sydney Children’s Hospitals Speciality Network [2011] NSWSC 1272 [15]; Witness v Marsden (2000) 49 NSWLR 429, 461 [144].

(c) The power to make pseudonym orders at common law is well established.[4] The categories in which such orders may be made to prevent prejudice to the administration of justice include, relevantly, cases:
[4]Witness v Marsden (2000) 49 NSWLR 429; R v Smith (1996) 86 A Crim…

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 Martin v Victoria

Details

AGLC: Martin v Victoria [2018] VSC 536
Case: [2018] VSC 536
Decision Date: 17 September 2018

CaseChat Overview and Summary

The matter of Martin v Victoria was heard by the court, where the plaintiff sought to proceed under a pseudonym to protect their identity. The dispute centred around the plaintiff's desire to maintain anonymity in proceedings that had the potential to cause significant personal and professional harm if their identity was disclosed. The case required the court to navigate the tension between the open justice principle and the need to protect the plaintiff's identity in exceptional circumstances.

The court was tasked with determining whether it was appropriate to allow the plaintiff to use a pseudonym, both in the court records and in the proceedings themselves. This involved balancing the plaintiff's right to privacy and protection against the principle of open justice, which is foundational to the Australian legal system. The court also had to consider whether granting the pseudonym would prejudice the administration of justice or the rights of other parties involved in the case.

The court concluded that the exceptional circumstances of the case warranted the use of a pseudonym. The plaintiff's identity was deemed highly sensitive, and there was a significant risk of harm if their identity were to be disclosed. The court found that the open justice principle could be appropriately balanced with the need for confidentiality in this instance, as the harm to the plaintiff outweighed the public interest in open proceedings. As a result, the court granted the plaintiff's application to proceed under a pseudonym, ensuring that their identity would remain protected throughout the litigation process.

Orders