Nixon v Random House Australia Pty Ltd
[2000] VSC 405
•29 May 2000
SUPREME COURT OF VICTORIA
CIVIL JURSDICTION
No. 5553 of 1998
| SUSAN MARY NIXON |
| Plaintiff |
| v. |
| RANDOM HOUSE AUSTRALIA PTY. LTD. (ACN 004 721 7897) AND JENNA MEAD |
| Defendants |
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JUDGE: | HEDIGAN, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: DATE OF RULING: | 29 May 2000 29 May 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 405 | |
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Defamation – Application on trial by witnesses for suppression of names – Names suppressed in earlier proceeding by statute – No present basis for continuation of suppression order – Application refused.
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RULING
HIS HONOUR:
I have before me an application this morning on behalf of two persons, apparently prospective witnesses for the defendants, in a proceeding about to commence to be tried by me with a jury. It is an action for damages for libel, allegedly made of the plaintiff in a chapter of the book published by the defendants. The relevant chapter was written by one of the witnesses whose identity is not disclosed in it, and according to her affidavit filed in support of the application, never has been in any prior proceeding or public document in relation to the events which may be relevant in this proceeding.
Those events are claims of sexual harassment and indecent assault by both applicants in 1991, against the then Master of Ormond College at the University of Melbourne. These claims led to a number of consequences which included the calling in of the plaintiff, Ms Nixon, a practising psychologist then working for the University of Melbourne, to assist, by conciliation or other methods, in the proper handling of the disturbing claims.
They also led to charges of indecent and unlawful assault being brought against the Master in respect of his conduct relating to each complainant. At that time, and later in another civil proceeding, each applicant's actual identity and address was suppressed from publication. In the civil suit to which I will later refer, it was commenced by the use of pseudonyms, XX and YY respectively, initials that have thus far in this proceeding been used in relation to them. It would seem likely at some Equal Opportunity Commission hearings in 1992, that their anonymity was preserved also.
So far as the criminal proceedings for indecent and unlawful assault were concerned, which were heard in 1992, it appears likely that the publication of the identity of the applicants was in effect prevented by section 4(1A) of the Judicial Proceedings (Reports) Act 1958 of Victoria, which section makes it an offence to publish any matter likely to lead to the identification of a person against whom a sexual offence is alleged to have been committed, whether or not the proceeding is pending. This included the case against Dr Gregory. Dr Gregory was eventually acquitted of these charges.
Later in 1995, when it appeared that a book entitled "The First Stone" was about to be published, and which was thought to deal directly with the events to which I have referred, the applicants commenced a legal proceeding in connection with it. This was said, in a supporting affidavit to these applications, to have been sought to get access to the manuscript of that work by making an application for preliminary discovery, that is, pre-writ discovery to enable the applicants to discover, if possible, whether they were being defamed by the publication.
It appears likely, although no specific relief in that way was sought (so I was told by Mr Walker of counsel, who appeared for the applicants on this application) for an injunction restraining publication, one would have thought the purpose of the pre-trial discovery was to see whether such an application would have been well-grounded.
In that application, which was ex parte, Beach J of this court exercised his power to permit the proceeding to be commenced by the then plaintiffs under the pseudonyms of XX and YY respectively. His order went no further than that. However, the application for discovery was rejected by the judge. His exercise of his discretion to permit pseudonyms and thereby anonymity in that case seems to my mind to have little impact on the circumstances with which I now have to deal, which is concerned with evidence-giving.
This proceeding, that is, the defamation proceeding, has been prompted by the actions of one of the applicants in writing about the events. So much was her undoubted right, although she wrote with anonymity and, according to the plaintiff at least, libelled the plaintiff in the process. Such of the chapter as I have read, annexed to the writ, is critical of many persons and supportive of others.
Whilst the applicants' desire to have their privacy and anonymity preserved, at least so far as the 1991 events are concerned, is understandable in human terms, and I take it into account, it cannot dominate the proper consideration of this matter.
The protection afforded indirectly by section 4(1A) of the Judicial Proceedings (Reports) Act no longer applies, in my view. Mr Walker at one stage in his written submissions appeared to preserve some argument concerning that. But it seemed to me ultimately, in his submissions here made, he did not contend that that section of that Act would apply in this case.
This case is not about whether and if so what sexual offence or impropriety was committed by Dr Gregory; it is about whether the publication written by one of the applicants defamed the plaintiff Ms Nixon. The courts have for the purposes of the criminal charges then dealt with disposed of that part of the background issue. Moreover, in my view, there can be no expectation legitimately held by the applicants that they were or are entitled to remain anonymous indefinitely or forever about those events. Mr Walker candidly confronted that conundrum, claiming that that was indeed the effect of the past events and the protections previously accorded to them.
The suppression of names clearly does not necessarily impinge directly upon the conduct of this trial as a trial, although there is some effect. Neither would the non-suppression of them, save that one of the applicants will apparently choose not to give evidence or come from abroad to do so. That is a choice made. It is not one imposed by the court.
I would regard it as likely that both of the applicants were approached long ago by the defendants, one of whom was their confidante in those dark days in 1991 and 1992. Indeed Mr Beach, for the defendant, stated this morning that in fact they had been approached some time ago. They are likely to have been proofed. This application has been delayed by the applicants virtually until the case was about to commence, although it was fixed for hearing some time ago. The affidavit of one of the applicants refers to the fact concerning the probable non-attendance of her companion if anonymity is withdrawn.
One might say that the plea for anonymity lacks nothing on the score of boldness, when one considers that it is the publication by XX, likely with YY's knowledge or approval, of her account of some aspects of those past events that have led to this case. It would be a curious and unjust result if it were decided in effect that whenever XX or YY choose to write or speak about that part of the past, they have the luxury of anonymity but not those about whom the words are written.
It is a fact of life that the media covers legal disputes of this kind. Most plaintiffs, defendants and witnesses would prefer to have their cases fought out in private, out of the glare of publicity and without distressing disclosure of personal details with the risk of unwelcome intrusions. Against this, however, must be balanced what is recognised generally, and by the courts, that it is an important feature (fundamental in many respects) in an open democratic society that, save in exceptional circumstances, the court's business is conducted openly and that parties and witnesses give their evidence with their names in open court. I have written concerning this in other cases.
The maintenance of the principle is important and it cannot be permitted to be eroded because parties and witnesses might feel more comfortable with anonymity. I accept that the case is put on a different basis in these applications. But the events are now but a year short of 10 years old. The events with which this proceeding is concerned, namely, whether Ms Nixon's conduct was, to use a neutral word at this time, inappropriate or incorrect, are just as old. But it is the publication of this chapter in 1997 that has re-ignited the fire. The writing of the chapter and its publication was subject to the ordinary law and there was simply no entrenched legal right to anonymity in those applicants. The right of any author to publish anonymously or under another name exists of course, although one must say it is unusual when writing recollections of past events in a non-fiction form. Whether anonymity should be kept must be judged on a case-by-case basis.
Mr Walker has presented a thorough and meticulously researched submission, which is of considerable assistance to me. Much of it was in written form to accommodate the necessities of commencing this action this morning, the date fixed for its hearing. I have read it all and I have heard him ore tenus this morning, as I have other counsel.
Essentially the applicants ask not only for a pseudonym order but also a non-publication order. Mr Walker has argued, referring to numerous authorities, including my own in Herald and Weekly Times v Medical Practice Board of Victoria (1999) 1 VR 267, that both powers exist. I do not doubt this, although it is less certain that a non-party has standing to make an application. However, as I indicated this morning, I assume, for the present purpose that they have. It would be an unhappy result if a newspaper had standing to argue against suppression, as it has in other cases, but a person arguably affected, including witnesses, did not have the right to make a submission for it. But as my reasons in Herald and Weekly Times indicate, the considerations that led to the conferring of standing of that kind on the organs of the media are connected with their special role in dissemination of information in society.
The applicants' argument and the specified relief sought seems to seek a pseudonym order as one which would permit the actual giving of evidence under a false name or initials. I doubt whether this aspect is in any way critical to the decision I now make. But to my mind, it is a dubious proposition. In one way, it appears to have some support from statements of Brooking J of this court in Re A Former Officer of ASIO (1987) VR 875 and in some other authorities to which Mr Walker referred in his written submissions and indeed some of which were referred to by Brooking J.
It is not absolutely clear from those cases, however, what court process was followed in relation to the giving and taking of the oath. In my view, witnesses ought to be sworn in their own name and give evidence in their own name as such. Orders may then be made concerning non-publication or in respect of pseudonyms in appropriate cases. A pseudonym order has the effect of permitting publication of the substance of the evidence, but restricts reference to the party or witness, except by the use of a pseudonym, sometimes, in fact usually, initials, sometimes (particularly in informer and like cases) by another name. A non-publication order has the effect of completely restricting publication of the specified matter or evidence. Thus, the order made in AAA v BBB (26/8/94, unreported) by Ashley J was not a pseudonym order but a non-publication order made under s.19 of the Supreme Court Act.
I accept that I have the power to make the order sought pursuant to the inherent power, and perhaps arguably under ss.18 and 19 of the Supreme Court Act. However, I do not take the view that s.4(1A) of the Judicial Proceedings (Reports) Act applies here, and I am unconvinced that s.19(e) of the Supreme Court Act applies to this case. An argument was advanced by Mr Walker that, on a broad interpretation, s.19(e) did. He relied, as I understood him, on that part of s.19 that permits a court to make an order under s.18, the powers there being set out, if in its opinion it is to necessary to do so:
"19(e) in order not to cause undue distress or embarrassment to the complainant in a proceeding that relates to a charge or an offence under various sections of the Crimes Act or attempts."
It seems to me to be stretching the meaning of that language beyond what is reasonable, to regard a possible witness in this proceeding as being protected on the grounds of undue distress or embarrassment, because they were a complainant in another proceeding arising out of one of the Acts constituting crimes in this State nine years before. The proceeding referred to for the purposes of ss.18 and 19 is the Supreme Court proceeding.
The history of anonymity in this case is not decisive, as I have indicated. I reject the suggestion that there is any compelling reason arising from the restrictions previously imposed, that is, by the Judicial Proceedings (Reports) Act or by the exercise by Beach J ex parte, of his powers, and whatever was the source of power employed in the Equal Opportunity Commission. Those consequences do not necessarily require or render it desirable to make the orders again. This must depend on the current facts.
The use of the words in the applicants' submission that I should do so, "as upholding the administration of justice as a continuing process according to law and in an effective manner", taken from my reasons in Herald and Weekly Times, is a misapplication, in my judgment, of the statements made by me in that context. It is sheer sophistry to suggest that it is necessary in the interests of justice to continue anonymity in this case, this proceeding, because of what occurred in other proceedings, some eight years old and some five. This argument is driven by the fallacy that the real justice is to be found in suppression or pseudonyms rather than open justice.
However, Mr Walker put his primary submission in this way, that it would detract from the administration of justice if the anonymity hitherto enjoyed by legal compulsion was to be destroyed in subsequent proceedings which were concerned largely with the same subject matter as the earlier proceedings in which protection was afforded and in which - that is, this proceeding – the applicants are involved only as witnesses.
It was also argued that the identity of the applicants should be seen as akin to the identity of informers, the mentally ill and victims of extortion or blackmail. I will refer to this shortly. As is well known, they are exceptions to the general principle on the basis that it is in the interests of society that such persons be encouraged to come forward. This argument, however, confuses what this case is about with the desirability of protecting persons making sexual complaints. The complaints against the Master were dealt with and secrecy as to the identity of the complainants was preserved. That aspect, in relation to the Master's conduct, is over.
This proceeding is concerned with another matter, although one accepts that the background is bound to play some part in the evidence, particularly as the crux of the defamation claimed is that Ms Nixon failed to conduct herself in the manner required when called in to conciliate and aid in dealing with the complaints that were made.
One may ask - what public interest is advanced or maintained by permitting these applicants - publication by one of whom lit again the fires of the past - to continue to have the benefit of anonymity in a case which is not directly concerned with their conduct, but with what was written by one of them about Ms Nixon in connection with the conciliation process? This case is concerned whether she had suffered wrong, compensable by damages.
The argument was advanced that public policy was served by the restriction sought, but in my view, it is not a case in which that argument has much potency. As I indicated in the course of debate with counsel, the public policy is really the other way. In my judgment, Mr Walker was alive to this difficulty and he met it by arguing that these applicants were in effect victims of sexual harassment or crimes and they were thereby in a similar special category of exception, along with informers, mentally ill persons, victims of blackmail and extortion and national security cases. Although the categories are not closed, as yet there is no such separate category, partly because the necessary protection is given by statute at the relevant time.
I do not regard these applicants as being in such a position as to be entitled to be excepted from the general rule as to open justice. I note that the claim was made in Mr Houghton's submission that the applicants had been referred to in the Magistrates Court and the County Court by their real names and presumably if that is so, so sworn. It was section 4(1A) which prevented publication. Mr Beach supported Mr Walker's arguments, naturally enough, because he desires to call the relevant witnesses and to have them give their evidence, one would have thought, perhaps in a more relaxed way under the protection of the order.
Mr Houghton argued that the order, if made, might have the effect of encouraging false testimony, that persons in similar positions would be in a privileged position where they would be aware that whatever they said, the world would not know that they said it. He also referred to the risk that the use of a pseudonym in this case might attract for the witnesses the sympathy of the jury, and thereby prejudice the plaintiff's case. He relied upon the fact that the very chapter sued upon was written by one of the applicants, and he contrasted the anonymity being sought by that applicant with the position of the plaintiff, who gives her evidence without it. He also referred to other witnesses who would be called and whose names and addresses would be given in the customary way.
I can perceive no injustice in declining these applications. There may be some injustice in acceding to them on the basis to which I have just referred, as the witness's evidence would have the benefit of being detached, as it were, from public scrutiny by those not present in court, that is, if their evidence had not been given by them in their real names. No other witness will have that immunity. Mr Houghton, as I have indicated, argued that this was unfair and might occasion both injustice and misplaced sympathy, damaging to the plaintiff.
There is no hard evidence that the applicants are likely to be damaged by the disclosure of their identities. It is not by any means to be criticised that they fear this but there is no basis articulated for it. The reason for their protection has long since passed. The affidavit in support identifies concerns that past hostility towards that applicant may be renewed. This appears to indicate that there were many who knew her as one of the complainants anyway; such persons would still know this. There is a natural concern with letting past events lie in the past, although that did not prove to be of much significance when one applicant wrote "Sticks and Stones" for publication.
The second applicant threatens not to come to court if her cover is blown. The inclusion of this material may not have been directed to forcing the court's hand, but I suspect that that was some feature of it. I have indicated there is no subpoena on the court file and it does not appear that any steps were taken at the appropriate time to seek to compel that evidence.
There is no evidence to support the suggestion that the giving of testimony in their names will produce the feared consequences and indeed one recognises that in advance that it would be virtually impossible to get it. But the grant of this application would also provide a basis on which any party or witness in a controversial dispute in the public domain who had experienced unpleasant social reactions might expect to be an exception to the general rule as to the open giving of evidence, and against publication up to a decade later, however stale the past events had become.
I do not accept that these applicants are in much different a position to countless witnesses called upon to give evidence in cases that attract public interest. Their belief that they are still objects of public interest may be correct or it may be mythical. This case is concerned with whether or not the written and published words defamed Ms Nixon and if they did, whether what was written was true or whether it was fair comment.
The applications are therefore dismissed. All evidence must be given in the names of witnesses. The relevant synopses must be amended to be in their names, and that can be done by delivery to my Associate. The media, print and electronic, are not prevented from publishing their names in the course of the trial. The usual requirements that have to be observed by the media are still in place. One hopes that the precepts of fairness, accuracy and good taste will be observed. Moreover, being mindful of what I have said are the issues and that the main events of the past are background only, wider speculation and revisiting of the past by the media will carry with it the risks of impacting upon the fairness of the trial, which is trial by jury. In a word, they should be very careful.
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