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:

1. 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. 

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

1. 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.

1. 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 R 308; Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47; John Fairfax Group Pty Ltd (receivers and managers apptd) v Local Court (NSW) (1991) 26 NSWLR 131.

(i)     where the plaintiff would reasonably be deterred from bringing proceedings without a pseudonym order;[5]

[5]RN v Cth (2014) 41 VR 699, 703 [15] citing ANN v ABC (No 1) [2006] VSC 348; A v Peters [2011] VSC 478; National Australia Bank Ltd v KRDV (2012) 204 FCR 436; ABB  v D1 [2013] VSC 81; TTT  v Victoria [2013] VSC 162; see also BK v ADB [2003] VSC 129.

(ii)  involving sexual offences;[6] and

(iii)             involving children.[7]

[6]ABC v D1 [2007] VSC 480 [44] citing ANN v ABC [2006] VSC 348; see also ESB v Victoria [2010] VSC 479.

[7]RN v Cth (2014) 41 VR 699, 703 [15]; see for example AS v Minister for Immigration and Border Protection [2014] VSC 486.

1. Section 4(1A) of the Judicial Proceedings Reports Act 1958 (Vic) provides:

A person who publishes or causes to be published any matter that contains any particulars likely to lead to the identification of a person against whom a sexual offence, or an offence where the conduct constituting it consists wholly or partly of taking part, or attempting to take part in an act of sexual penetration as defined in s 35 of the Crimes Act 1958, is alleged to have been committed is guilty of an offence whether or not a proceeding in respect of the alleged offence is pending in a court.

1. In the present circumstances, the Registrar is likely to determine that the section requires a restriction of access to the court file.

1. In ABC v D1, J Forrest J distilled the principles in applications of this kind.  Briefly stated, they are that the principal and fundamental rule is that judicial proceedings should take place openly, however in certain circumstances the administration of justice may require qualification of that general rule. A pseudonym order should only be made where it is necessary to do so to prevent prejudice to the administration of justice. The individual circumstances of the applicant for such an order may be taken into account. In cases involving sexual offences it may be appropriate to suppress not only the name of the plaintiff or alleged victim of those offences, but of the defendant or alleged perpetrator.  A mere belief that such an order is necessary is not sufficient, and cogent proof of the necessity of making such an order is required, however ‘in certain cases a court can, in a practical sense, act on its own experience and draw appropriate inferences’.[8]

   [8][2007] VSC 480 [65]-[71].

1. The plaintiff’s claims involve allegations of assault and rape and I am satisfied that it is in the interests of justice that the identities of the plaintiff and the alleged perpetrator of the offences against her be supressed. A further reason to do so is to protect the interests of the plaintiff’s two young children, the alleged perpetrator being their father.

1. The plaintiff’s fear of psychological harm is also a relevant consideration.[9]  The plaintiff’s solicitor has exhibited a psychiatric assessment of the plaintiff exhibited to the affidavit of 7 September 2018, and I am satisfied that the plaintiff has been diagnosed with a psychiatric condition that may be aggravated by publicity. The plaintiff’s fear of further psychological harm is genuine and reasonably held, and it may reasonably be assumed that in the absence of a pseudonym order the plaintiff could be deterred from seeking relief in this court.[10]

   [9]TTT v Victoria [2013] VSC 162 [18].

   [10]Ibid.

1. The extent of interference with the principle of open justice occasioned by this order will be minimal, as noted above.[11]

   [11]ABC v D1 [2017] VSC [33]-[34].

1. I am satisfied on the evidence before the court that the interests of the administration of justice require a pseudonym order in respect of the plaintiff and the non-party individual.

1. Accordingly, I will order that –

1.        In this proceeding:

(a)   the identity of the plaintiff may be concealed and all references to the plaintiff in the proceeding, whether in open court or in court documents, shall only be the pseudonym ‘Sarah Martin’;

(b)   the identity of the non-party individual first referred to in paragraph 5 of the proposed statement of claim may be concealed and all references to that non-party individual in the proceeding, whether in open court or in court documents, shall only be the pseudonym ‘Andrew Gilmore’; and

(c)    in all documents filed in this case, the first reference to the plaintiff shall be stated as ‘Sarah Martin (a pseudonym)’, and the first reference to the non-party individual shall be stated as ‘Andrew Gilmore (a pseudonym)’.

2.        All documents presently on the court file that identify the plaintiff and the non-party individual, including but not limited to the Generally Endorsed Writ dated 10 February 2017, the Notice of Appearance dated 22 August 2018, the Notice that a Jury is Required dated 22 August, and the affidavit of Merys Williams dated 7 September 2018, shall be restricted and are to remain confidential between the parties and be retained on the Court file in a sealed envelope that is not to be opened nor its contents revealed to any person except by order of a judge of this Court.

3.        The title to the proceeding shall be deemed to be amended in accordance with paragraph 1 of this order to identify the plaintiff by a pseudonym and all further documents filed in the proceeding shall bear the amended title.

4.        By 5 October 2018, the plaintiff shall file and serve a statement of claim substantially in the form of Exhibit MEW-1 to the Affidavit of Merys Elizabeth Williams dated 7 September 2018 but incorporating the pseudonyms in lieu of the true identities of the plaintiff and the non-party individual.

5.        I direct the Prothonotary to–

(a)       amend the plaintiff’s name in the title of the proceeding to ‘Sarah Martin (a pseudonym)’; and

(b)      once the title of the proceeding has been amended and the documents sealed pursuant to paragraph 2 of this Order, lift the current restriction on the Court file.

6.        The plaintiff’s costs of this application are costs in the proceeding.

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