Olsson v Fagan; Hikspoors v Fagan

[2022] NSWDC 145

District Court

New South Wales

Medium Neutral Citation:

Olsson v Fagan; Hikspoors v Fagan [2022] NSWDC 145

Hearing dates:

5 May 2022

Date of orders:

6 May 2022

Decision date:

06 May 2022

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

See paragraphs [27] and [28] for orders.

Catchwords:

PRACTICE & PROCEDURE – orders refusing defendant’s multiple applications for dismissal, strike out, non-publication orders, and security for costs in proceedings claiming damages for mental harm following defendant surreptitiously illicitly filming the separate intimate activities of the plaintiffs in their living quarters

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 26, s 56

Court Suppression and Non-publication Orders Act 2016 (NSW), s 7, s 8

Crimes Act 1900 (NSW), s 91P

Uniform Civil Procedure Rules 2005 (NSW), r 13.4, r 14.28, r 42.21

Workers’ Compensation Act 1987 (NSW)

Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited:

Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937

Comcare v PVYW (2013) 250 CLR 246; [2013] HCA 41

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69

Category:

Procedural rulings

Parties:

Ellen Olsson (Plaintiff)
Lian Hikspoors (Plaintiff)
Simon Fagan (Defendant)

Representation:

Counsel:
Mr R Royle (Plaintiffs)
Ms M Fraser (Defendant)

Solicitors:
Wyatts Lawyers (Plaintiffs)
Holmann Webb (Defendant)

File Number(s):

2021/263911
2021/263949

Publication restriction:

None

Judgment

Contested notices of motion

1. On 27 January 2022, in these two proceedings involving related facts, the defendant filed notices of motion variously seeking strike out orders, non-publication orders, and security for costs. I have concluded those orders as claimed should be refused, subject to one minor exception. The parties produced two court books which contained the relevant affidavit evidence. The facts summarised below are extracted from that material.

Facts

2. In summary, the plaintiffs, two overseas female backpacker students who were in this country on tourist visas, worked for the defendant, a farmer, as fruit pickers on an isolated 7000 acre property at Coonamble, NSW.

3. Each plaintiff has brought separate proceedings against the defendant, claiming that by his surreptitious illegal actions of the Peeping Tom type, between October 2019 and April 2020, he used hidden cameras to secretly film them in their respective intimate activities in the accommodation he had provided to them. Over 2500 illicit images were discovered when the defendant’s recording equipment was examined.

4. The defendant’s illicit actions were undertaken without the permission of the plaintiffs, thus giving rise to their various claims for breach of a claimed obligation of confidence, as well as claims framed in deceit, alleged breach of an implied obligation to provide safe accommodation, and alleged breaches of the Australian Consumer Law. The plaintiffs claim the events in question have caused them to each suffer mental harm, and nervous shock.

5. The defendant's impugned activities, as complained of by the plaintiffs, involved breaches by him of the criminal law in this State: s 91P of the Crimes Act 1900 (NSW).

6. On 11 August 2020 the defendant appeared at Coonamble Local Court where he pleaded guilty to a range of charges relating to the described events. He has been found guilty and convicted of installing devices and adapting a building to film and observe others and filming the plaintiffs separately in private acts without their consent in aggravated circumstances, as well as later stalking and intimidating with the intention of causing personal fear and harm. The defendant has served a term of imprisonment in respect of these matters.

Issue 1 - Nature of the proceedings, factual background, and justiciability

7. The initial question to be determined in these motions is whether the plaintiffs have arguable or justiciable claims against the defendant.

8. In my opinion, whilst aspects of the plaintiffs’ claims are relatively novel, as the conduct alleged against the defendant is proscribed by the criminal law, the claims of implied breaches of the respective duties of care owed to the plaintiffs are reasonably arguable. Therefore, they raise justiciable issues to be tried and those claims must be determined at a hearing of the merits: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69; Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937.

9. The proceedings are at a relatively early stage of development. Defences have been filed with joinder of issues. The defendant sought to argue that of the multiple causes of action claimed by the plaintiffs, the proceedings also involve a claim for workers’ compensation, invoking authorities such as Comcare v PVYW (2013) 250 CLR 246; [2013] HCA 41 to seek the benefit of the limitations on awardable damages as imposed by the workers’ compensation scheme.

10. In my view such defence arguments do not apply on account of obvious factual distinctions which indicated the injuries complained of were not sustained in the course of employment but arose later, after the plaintiffs learned of the events that had earlier transpired. However, for the avoidance of doubt, the plaintiffs have undertaken to replead their claims to remove any argued ambiguity over whether the proceedings should be the subject of the scheme of the Workers’ Compensation Act 1987 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW).

11. In my opinion the plaintiffs’ identified claims are arguable and justifiable. Accordingly, the various remedies sought by the defendant for dismissal of the proceedings pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 13.4, or alternatively, strike out of the plaintiff's statements of claim pursuant to UCPR r 14.28, must necessarily be refused as being without merit.

Issue 2 - Defendant's request for suppression orders, opposed by plaintiffs

12. Pursuant to s 7 of the Courts (Suppression and Non-Publication Orders) Act 2007 (NSW), the defendant seeks an order that his name, and the names of the plaintiffs, not be published except to the parties, their legal advisors, prospective witnesses, medical advisors, experts, and any insurer of the plaintiffs' employer. The plaintiffs oppose the making of any such orders of that nature.

13. The difficulty with the course proposed by the defendant is that his name has already been publicly identified in the Local Court criminal proceedings without restriction as to publication. It would therefore be futile to make a non-publication order restricting his identification in these proceedings.

14. In the criminal proceedings, it appears that the Local Court Magistrate made non-publication orders in relation to the names of the defendant’s victims, namely the plaintiffs in these proceedings. The formal details of those orders were not in evidence. They were not made at the request of the plaintiffs. However, the plaintiffs do not seek the protection of such orders and in these proceedings, they are prepared to be identified by their proper names. In my view, in circumstances where the plaintiffs do not seek suppression orders it is inappropriate that such orders be made at the request of the defendant.

15. The defendant argued that the existing orders of the Local Court preventing publication of the names of the plaintiffs provide a basis for making similar orders in this Court. I do not accept that argument. The Local Court orders relate to the plaintiffs as adult victims of crime. The orders were made without their consent and without any request for such orders having been made on their part.

16. In these proceedings, the plaintiffs have an unfettered right to proceed using their own names without restriction. They do not invoke any of the statutory grounds for making a non-publication order: s 8 of the Courts (Suppression and Non-Publication Orders) Act 2007 (NSW). It would therefore be oppressive, unjust, and contrary to the principles of open justice to make such orders against their wishes without evidence as to the need for such orders.

17. In my opinion, in the described circumstances, suppression orders of the kind sought by the defendant, including as to his own identification, would be contrary to the primacy of the principle of open justice, especially where the plaintiffs do not agree to such orders and the defendant has publicly pleaded guilty to the underlying offences and served a term of imprisonment on account of the described facts.

18. I conclude that the defendant has not discharged the burden of showing that in this case the public interest of open justice has been displaced or outweighed by his own interests or the interests of the plaintiffs, such that the sought non-publication orders he seeks should be made. Accordingly, the defendant's request for non-publication orders must be refused.

Issue 3 - Claim for security for costs

19. In the proceedings brought by Ellen Olsson, pursuant to UCPR, r 42.21, the defendant claims security for costs from the plaintiff, a student who now resides in Sweden. He also seeks a stay of her proceedings until such security is given.

20. In my opinion the defendant has not established the basis for the making of such an order as sought. In my view, in the described circumstances, to make such an order in this case would be oppressive and would have the effect of stultifying the plaintiff’s claim. Of itself, the mere fact that the plaintiff now lives overseas is an insufficient basis for making the order sought. I therefore decline to make an order for security for costs in the terms sought by the defendant.

21. The defendant claimed an amount of $58,000 against the cost of future legal work in defending the claim by Ellen Olsson, based upon an estimate provided by the defendant’s solicitor.

22. In my view, the claim for security for costs is problematic as the two cases will be heard together and it is difficult to reasonably identify the particular extent of the defendant’s potential exposure to costs in defending Ms Olsson’s case.

23. Although Sweden does not have legislative enforcement provisions for foreign judgments based on international treaties or conventions, there is a dispute as to whether an award of costs made in NSW would be recoverable in Sweden. The dispute arises because counsel for the plaintiff has identified in submissions that some mechanisms for the enforcement of foreign judgments in Sweden do exist where such judgments are outside the European Union Convention.

24. As it would take time, delay and cost to fully explore and document that position, an expedient course was put to the parties, namely, that a relatively nominal order for security be made in the sum of $2000 to be paid into Court, but only after a failed mediation occurs where the Court will make separate case management orders pursuant to s 26 of the Civil Procedure Act2005 (NSW).

25. The parties have acknowledged the appropriateness of that practical course, noting that pursuant to UCPR r 42.21, it would be possible for the defendant to make future applications at any appropriate stage for further orders, if justifiable at that time. I will therefore make an order along those lines.

Issue 4 - Costs

26. As the defendant has failed to succeed in obtaining the orders sought, the plaintiffs are entitled to have their costs of resisting the defendant’s notices of motion. In the circumstances, there should be no order for costs made in favour of the defendant consequent upon the limited order proposed for security for costs.

Orders

27. In proceedings numbered 2021/00263911 brought by Ellen Olsson against Simon James Fagan I make the following orders:

1. Pursuant to UCPR, r 42.21, within 14 days of a failed mediation ordered pursuant to s 26 of the Civil Procedure Act 2005, the plaintiff is to pay the sum of $2000 into Court as security for the defendant’s costs pending the further order of the Court;

2. The notice of motion filed by the defendant on 27 January 2022 is dismissed;

3. The defendant is to pay the plaintiff’s costs of the dismissed motion;

4. Pursuant to s 56 of the Civil Procedure Act 2005, the Court will proceed to make appropriate case management orders.

28. In proceedings numbered 2021/00263949 brought by Lian Hikspoors against Simon James Fagan I make the following orders:

1. The notice of motion filed by the defendant on 27 January 2022 is dismissed;

2. The defendant is to pay the plaintiff’s costs of the dismissed motion;

3. Pursuant to s 56 of the Civil Procedure Act 2005 (NSW), the Court will proceed to make appropriate case management orders.

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Decision last updated: 06 May 2022