Plaintiff AB v Trustees of the Marist Brothers
[2014] ACTSC 381
•28 November 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Plaintiff AB v Trustees of the Marist Brothers & Ors |
Citation: | [2014] ACTSC 381 |
Hearing Date(s): | 27 November 2014 |
DecisionDate: | 28 November 2014 |
Before: | Mossop M |
Decision: | See [25] |
Category: | Interlocutory application |
Catchwords: | PROCEDURE – non-publication orders – orders anonymising name of plaintiff – whether in the interests of the administration of justice – Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 111 |
Legislation Cited: | Court Procedures Rules 2006 (ACT) Evidence (Miscellaneous Provisions) Act 1991 (ACT) |
Cases Cited: | R v BR [2010] ACTSC 17 R v PJ [2006] ACTSC 37 |
Parties: | Plaintiff AB (Plaintiff) Trustees of the Marist Brothers (First Defendant) Keiran Geaney (Second Defendant) Joseph McMahon (Third Defendant) Pat Thompson (Fourth Defendant) John Thompson as the executor of the estate of the late Alman Dwyer (Fifth Defendant) Ronald Perry (Sixth Defendant) Christopher Wade (Seventh Defendant) Alexis Turton (Eighth Defendant) Geoffrey Joy (Ninth Defendant) The Trustees of the Marist Brothers as the executor of the estate of the late Robert Goodwin (Tenth Defendant) |
Representation: | Counsel: Mr A J Bartley SC with Mr J L Sharpe (Plaintiff) Mr R Crowe SC (Defendants) |
| Solicitors: Porters Lawyers (Plaintiff) Makinson d’Apice (Defendants) | |
File Number(s): | SC 158 of 2014 |
Publication Restriction: | Yes (Plaintiff’s name is to be anonymised with “Plaintiff AB”) |
Introduction
The plaintiff has brought proceedings against 10 defendants arising out of sexual assaults alleged to have been perpetrated by a teacher at Marist College Canberra between 1977 and 1979. The teacher alleged to have committed the assaults is not a defendant to the proceedings. The allegations of sexual assault are not admitted by the defendants.
By application in proceeding dated 27 November 2014 the plaintiff has sought orders that he be referred to by a pseudonym and that a non-publication order be made including restricting access to the court file to the parties and their legal representatives only.
The defendants did not oppose the making of appropriate orders.
I made interim orders preventing the publication of the name of the plaintiff pending determination of this application and permitting the plaintiff to be identified only as “Plaintiff AB”.
Legislation
The application is brought under s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the Act). That section applies to proceedings in the Supreme Court and provides:
111Prohibition of publication of evidence etc
(1)This section applies if a court considers that—
…
(b)in the interests of the administration of justice the names of any of the following people should not be published:
(i) a party to the proceeding;
(ii) a witness, or intended witness, in the proceeding.
(2)The court may, at any time during or after the hearing of the proceeding, make an order forbidding the publication of—
…
(c)the name of the party or witness.
…
(5)For this section, the publication of a reference or allusion to a person is taken to be a publication of the person’s name if—
(a)the reference or allusion discloses the person’s identity; or
(b)the person’s identity might reasonably be worked out from the reference or allusion.
Rule 2903(1) of the Court Procedures Rules 2006 (ACT) (Rules) provides that anyone may search the registry for and inspect or take a copy of any document filed in the registry. That is subject to particular exceptions identified in the remaining sub rules of r 2903. Rule 6 permits, in an appropriate case, the Court to, by order, dispense with the application of a provision of the Rules on any conditions it considers appropriate.
Evidence
In support of its application the plaintiff relied upon two affidavits of Heather Ross sworn on 27 November 2014.
The first affidavit annexed a report of Dr Bruce Westmore, forensic psychiatrist, dated 7 January 2014 and a report of Dr Peter Klug, forensic psychiatrist, dated 6 February 2014. The report of Dr Westmore was prepared for the solicitors acting for the defendants. The report of Dr Klug was prepared for the solicitors for the plaintiff. These reports are based on consultations with the plaintiff and express conclusions relevant to the substantive proceedings. They do not relate specifically to the effect of public disclosure of the plaintiff’s name as a consequence of the reporting of these proceedings. Obviously they were only admitted for the purposes of the present application and the factual basis for the reports and their conclusions may well be in contest at any final hearing.
The reports record the general background and psychiatric history as reported by the plaintiff and express opinions as to the effect upon the plaintiff of the reported sexual assaults.
10. Dr Westmore makes a diagnosis of gambling disorder (currently in remission), alcohol abuse (currently in remission) and a provisional diagnosis of a dysthymic disorder, upon which has been superimposed more acute episodes of depression which are likely to be of a reactive or adjustment disorder type. Dr Westmore accepts that based on the history of sexual abuse given by the plaintiff he would have developed an adjustment disorder with depressed, anxious and angry moods and later appears to have progressed into a dysthymic disorder upon which is superimposed recovering periods of reactive depression.
11. Dr Klug makes formal psychiatric diagnoses of:
(a)chronic and recurrent major depressive disorder;
(b)chronic post-traumatic stress disorder-in partial remission;
(c)alcohol dependence-in partial remission; and
(d)gambling disorder-in remission.
12. He is of the opinion that the plaintiff suffers extensive psychiatric and personality-based problems consequent upon the abuse by the teacher.
13. The report also discloses that the plaintiff has two school-aged children.
14. The second of Ms Ross’ affidavits annexes a letter to, and reply from, the plaintiff’s treating clinical psychologist. The letter requests the psychologist’s opinion upon whether public access to the details of the court proceedings in respect of the plaintiff’s claim to damages for sexual abuse he suffered as a child and the publishing of his name would be detrimental to his mental health. The report indicated that the plaintiff suffered from “fragile mental health and is a very private person”. It expressed the opinion that it would be detrimental to the plaintiff’s mental health if his name was not an anonymised in respect of the current claim. The report was not ideal in that apart from the fragility of the plaintiff’s mental health and his desire for privacy the report did not, as required by the expert witness code of conduct, set out in Schedule 1 of the Rules, identify the reasons for each opinion that was expressed. That deficiency is explained by the fact that it was produced at very short notice because the solicitors for the plaintiff had not put on the application and supporting material in accordance with an earlier direction of the Court.
Consideration
15. The starting point is that the proceedings of courts and the identities of parties litigating in the courts are public. Section 111 of the Act gives a specific power to prevent publication of the name of a party to a proceeding. The threshold for the existence of that power is that the Court “considers that… In the interests of the administration of justice” the name should not be published. Where that threshold is met there is a discretion that may be exercised to preclude publication.
16. In State of New South Wales v Plaintiff A [2012] NSWCA 248 at [93]-[96] the reasons of Basten JA, with whom Hoeben JA and Beazley JA agreed, emphasise the importance of evidence to establish the requirements of the particular statutory test for suppression of a party’s name. In the absence of some legislative authorisation for a default rule permitting the anonymisation of plaintiffs in civil proceedings alleging sexual assault, the burden will be on the plaintiff to put forward evidence which will justify the making of an order under s 111. The extent of evidence required will obviously be influenced by the nature of the particular case. However, having regard to the strongly entrenched principle of open justice, there is a burden on the party seeking an order to persuade the Court that an order should be made.
17. The legislature has enacted a provision which prevents the identification of complainants in sexual offence proceedings: see s 40 of the Act. Those provisions are, however, limited to criminal proceedings and do not extend to proceeding such as the present.
The authorities relevant to the operation of s 111 (previously numbered s 91 in the Act) were surveyed by Justice Refshauge in R v BR [2010] ACTSC 17. That was a criminal case where there was evidence of the potential impact of publicity on the applicant’s wife who had a long history of mental impairment and who his Honour considered may well be an important witness in the sentencing of the applicant. His Honour considered that she was likely to be rendered unable to give evidence because of the publication of the applicant’s name. That was sufficient to persuade his Honour that it was in the interests of justice that reasonable steps should be taken to ensure that this did not occur. His Honour made specific reference to the prospect that such an order might last only until the trial and may well be reconsidered. One of the authorities referred to by his Honour was the decision of Connolly J in R v PJ [2006] ACTSC 37. In that case his Honour referred to the order of a magistrate suppressing the name of the accused being made “on the sole, but proper basis that as the accused had school-aged children they would be identified by any publicity flowing from the publication of his name.”
19. I take judicial notice of the fact that proceedings in this Court receive a significant level of reporting by, at least, the Canberra Times and the Australian Broadcasting Corporation. The likelihood of reporting is increased by the heightened interest in claims relating to institutional responses to sexual abuse arising out of the conduct of the Commonwealth Royal Commission on that subject. Thus, there is not merely the chance, but the very real likelihood of there being significant publicity associated with this case which would draw attention to the identity of the plaintiff.
20. I accept for the purposes of this application the evidence of Dr Westmore and Dr Klug that the sexual abuse reported by the plaintiff is a matter which has had a significant effect on his confidence and personality. I do not need, for the purposes of the present application, to resolve any differences in emphasis or diagnosis between the reports of Dr Westmore and Dr Klug. The report of Dr Klug records that the plaintiff had previously attempted to get assistance from lawyers but he had felt unable to continue with that process. He suffered from a breakdown in 2012 and only subsequently returned to get the legal assistance which led to the commencement of these proceedings. The description of the plaintiff’s psychiatric state which is set out in detail on pages 8 and 9 of the report of Dr Klug under the headings “Discussion” and “Opinion” appears to me to create a very significant risk that public identification of the plaintiff would have a significant adverse effect on his mental health and his capacity to conduct the present proceedings.
21. The rather brief evidence of the plaintiff’s treating clinical psychologist is that the public exposure of his identity arising out of these proceedings would have an adverse effect on his mental health. In the light of the evidence about his state of mental health from Dr Westmore and Dr Klug, I accept this evidence.
22. Finally, I note that the identification of the plaintiff will also likely have the effect of identifying his two school-aged children. Children are particularly vulnerable to teasing and embarrassment by other children on the basis of almost any area of difference. In my view, the identification of the plaintiff creates a risk of there being impacts upon his school-age children and that is a matter which, in the light of the expert evidence, gives rise to a significant additional risk of mental harm to the plaintiff. I note that this is not a case where it is necessary to consider or resolve the issue identified in R v BR [2010] ACTSC 17 at [14].
23. The circumstances are, in my view, in combination sufficient to warrant the making of an anonymisation order. In my view the interests of justice extend to the desirability of the protection of persons from further psychiatric harm that would result from their identification as parties to the proceedings. That is because not only is it not in the interests of the administration of justice that the process of litigation itself impose further psychiatric harm on litigants but also because there is a real risk that persons who have suffered psychiatric harm as a consequence of actions such as those alleged in the present case will be deterred from litigating or properly litigating their claims because of the further mental harm that may arise as a consequence of the publication of their name for the purposes of the proceedings. While it is probably inevitable that the litigation process carries with it the risk of imposing further harm on a plaintiff and hence a risk that that fact will affect the capacity of a plaintiff to fully vindicate his or her rights, in my view it is appropriate to minimise the impact of that reality, especially where that can be done without significantly affecting the public interest in the public nature of the judicial process. Therefore, I am satisfied that the threshold for the making of an order has been met and that an order should be made.
24. In relation to the order restricting access to the court file, this is effectively an ancillary order which will make it less likely that there is any intentional or inadvertent non-compliance with the first order. It would involve a departure from the position identified in r 2903, which can be achieved by an order under r 6. It is an order in relation to which the parties did not address specific submissions. While I am prepared to make an order preventing access to the file as an order ancillary to the prohibition on the publication of the name of the plaintiff, the order that I will make is an order which is subject to the capacity of the parties or any other person to make an application to the Court to have it varied if there is proper reason to do so.
25. The orders of the Court are:
1. Until further order of the Court the publication of name of the plaintiff is forbidden under s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).
2. The plaintiff for the purposes of these proceedings shall be identified as “Plaintiff AB” and shall be identified as such in any document filed for the purposes of the proceedings.
3. That, other than in accordance with an order of a judge or the Master of the Court, there shall be no public access to the Court file other than by the parties or their legal representatives.
4. The costs of the application are reserved.
| I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Master Mossop. Associate: Date: 22 January 2015 |