PPP v QQQ as the representative of the Estate of RRR (deceased)
[2011] VSC 186
•6 May 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
No. S CI 2010 02654
| PPP | Plaintiff |
| v | |
| QQQ as the representative of the Estate of RRR (deceased) | Defendant |
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JUDGE: | DIXON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 April 2011 | |
DATE OF JUDGMENT: | 6 May 2011 | |
CASE MAY BE CITED AS: | PPP v QQQ as the representative of the Estate of RRR (deceased) | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 186 | |
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Practice and Procedure – Suppression order – Pseudonym order – Open justice principle – Proceeding withdrawn – Application to set aside order made by consent prior to issue of proceeding – Herald and Weekly Times Pty Ltd intervening - Supreme Court Act 1986 ss 18, 19 – whether application an abuse of process.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R.B. Harper | Robinson Gill |
| For the Defendant | Mr F.G.A. Beaumont QC and Ms K. McMillan SC | Whitehead Summons |
| For the Herald and Weekly Times Pty Ltd | Mr J. Quill (Solicitor) | Kelly Hazell Quill |
HIS HONOUR:
In this proceeding, issued on 18 May 2010, the plaintiff claimed damages, including exemplary and aggravated damages, for sexual assault which he alleged occurred prior to the death of the tortfeasor. The defendant is a representative of the estate of the deceased. On 17 May 2010, Associate Justice Daly made, by consent, an order prohibiting publication of any report which might identify the parties to the proceeding, and permitting the plaintiff to commence the proceeding using pseudonyms to disguise the true identity of the plaintiff and the defendant. This is a form of suppression order commonly referred to as a pseudonym order.
When the proceeding came on for trial, I was informed by counsel for the parties that the plaintiff was discontinuing the proceeding and that no order as to costs was sought by either party. Accordingly, by consent, I ordered that:
1. The proceeding is discontinued.
2. There is no order as to costs.
There was an oral application by the plaintiff. It was variously described as an application to set aside, or to lift, or to vary, the suppression order made by Daly AsJ. On this application, the plaintiff was supported by the Herald and Weekly Times Pty Ltd on whose behalf Mr J. Quill sought, and was granted, leave to appear. The application by the Herald Sun for leave to appear was not opposed by the defendant. However, the defendant opposed the plaintiff’s substantive application.
The issues with which I must now deal are these. Having regard to the fundamental principle of open justice, where the plaintiff is withdrawing a proceeding from the court without adjudication on its merits, should the court set aside, or vary, a pseudonym order, made by consent, which has been operative during the whole of the period in which the proceeding has been extant? Is such application, in these circumstances, an abuse of the court’s process?
The making of the pseudonym order
Associate Justice Daly made the pseudonym order on the basis of an affidavit sworn by the plaintiff’s solicitor. This affidavit was rather short on factual detail although the solicitor’s affidavit exhibited a signed minute of consent order. Two reasons for the making of the order were proffered. The first reason was to protect the plaintiff’s identity having regard to the intimate and personal details that would necessarily be disclosed in the litigation. The second reason was to avoid adversely affecting the plaintiff’s psychological state by publicity consequent upon the proceeding. Neither of these propositions was challenged by the defendant.
The plaintiff’s solicitor also stated that the defendant sought to protect the identity of the defendant for the benefit of surviving relatives who would be subject, upon public disclosure, to ridicule and emotional trauma. The source of this statement as to the defendant’s intention was not revealed by the affidavit and the statement is not consistent with an exhibited letter from the defendant’s solicitors. In court, counsel for the defendant objected to any reliance on that statement as accurately stating the reason why the defendant consented to the pseudonym order.
By s 18 of the Supreme Court Act 1986 the Court may, in the circumstances mentioned in s 19, make an order prohibiting the publication of a report of any part of a proceeding or of any information derived from a proceeding. Section 19(b) provides that the Court may make an order under s 18 if, in its opinion, it is necessary to do so in order not to prejudice the administration of justice.
No question was raised as to the Court’s power to make the pseudonym order. Plainly, the associate justice had jurisdiction to make the orders by consent. Nor was it suggested that there was any material distinction between orders made under s 18 of the Supreme Court Act and the exercise by the Court of its inherent powers.
The material parts of the pseudonym order were:
1.The Plaintiff be granted leave to commence proceedings by filing the writ and statement of claim so that:-
a.The proposed Plaintiff in such proceeding is not required to be identified therein by his true name but shall instead be referred to in the originating process and any subsequent document filed in a proceeding be the pseudonym “PPP”.
b.The proposed Defendant in such proceeding is not required to be identified therein by its true name but shall instead be referred to in the originating process and any subsequent document filed in a proceeding be the pseudonym “QQQ as the representative of the Estate of RRR, deceased”.
…
2.All documents filed subsequently in the proceeding shall identify the Plaintiff by the reference set out in 1 above, save for the jurat of any affidavit required to be sworn or affirmed by the Plaintiff.
3.All documents filed subsequently in the proceeding shall identify the Defendant by the reference set out in 1 above, save for the jurat of any affidavit required to be sworn or affirmed by the Representative of the Estate of the Defendant.
…
5. Publication is prohibited of any report of:-
a. The hearing of this application.
b.The contents of any affidavit in support of, and the order made in, this application.
c.The statement of claim or any subsequent document in the proposed proceeding or any information derived therefrom.
d.The hearing of any interlocutory process in the proposed proceeding to the extent only that publication might tend to identify the Plaintiff or the Defendant.
6.The affidavits upon which this application was based and the original writ to be placed on the Court file in a sealed envelope to be held by the Registrar of this Court, not to be opened unless by order of a Judge.
7.The Plaintiff will take no action against the representative of the Estate personally and the Plaintiff will enforce any orders against the representative of the Estate personally.
One would not expect the parties to a consent order to be challenging its continuing operation, and the order was not challenged by the Herald Sun. No application was brought pursuant to Rule 46.08 of the Supreme Court (General Civil Procedure) Rules 2005.
The application of the plaintiff
The plaintiff’s oral application was, initially, that orders 1(a)-(b), 2, 3, 5 and 6 of the pseudonym order be set aside. During the course of argument, the application was varied to seeking that only paragraphs 5 and 6 be set aside.
Before the hearing of the application commenced, counsel for the defendant applied for a hearing in camera. This application was rejected. A copy of the pseudonym order was prominently displayed at each entrance to the courtroom and, at the outset, I received no positive response to my inquiry whether there was anybody in the courtroom who was unaware that the order had been made. I was informed by Mr Quill that a journalist employed by the Herald Sun was present in court.
Counsel for the plaintiff based his application on three affidavits, one affidavit sworn 20 April 2011 by his instructing solicitor with five exhibits, and two affidavits by the plaintiff sworn 18 and 19 April 2011 with four exhibits. Counsel for the defendant objected to these affidavits on the ground of non-compliance with the pseudonym order. Apart from reading the affidavits and exhibits, I reserved my decision as to how I would receive these affidavits pending the resolution of the substantive application. Objection was also taken to the plaintiff’s solicitor opinion in the affidavit regarding the plaintiff’s mental health or his injury, and the effect upon it of disclosure of his identity, on the basis that the solicitor lacked specialised knowledge to express such opinion. I have not had regard to the solicitor’s expressed opinion as there is no identification of any specialised knowledge based upon the solicitor’s training, study, or experience (whatever that might be).[1]
[1]See ss.76, 79 Evidence Act 2008.
Neither the defendant, nor the Herald Sun, placed any material before me by affidavit on the application. I have no regard to factual matters stated, over objection, from the Bar table.
Findings of fact
From these affidavits, I find that:
·four newspaper articles identifying the parties and referring to some of the circumstances alleged in the statement of claim were published prior to the pseudonym order.
·the plaintiff consented to the making of the pseudonym order after taking advice from his solicitor, following consideration of whether the pseudonym order might facilitate the “progress of the claim” and early resolution.
·the solicitors for the estate had provided information which suggested that the estate was insolvent but would agree to the appointment of a representative for the purposes of the proceeding on condition of a pseudonym order and an order protecting the representative for the estate from personal responsibility in the proceeding.
·following the making of the pseudonym order, the writ (with statement of claim) was filed and served. Very serious allegations of sexual assault were particularised. A defence was filed. The issues were joined. The defence denied all of the substantive allegations, affirmatively asserting that the extent of physical contact was limited to shaking hands on appropriate occasions. A mediation was not successful and thereafter the proceeding was set down for trial.
·the plaintiff accepted that there was no realistic prospect of recovery of any compensation or legal costs on the basis of what his solicitor had learned during the progress of the proceeding. The plaintiff asserted he did not “have any reasonable option available to him but to discontinue these proceedings”. He expressed no interest in vindication of his allegations by a trial.
·the plaintiff no longer wished to have his identity or that of the deceased suppressed in the proceeding, it being his baldly asserted belief that the only effects of the pseudonym order are to shield the deceased from scrutiny and hide from the public eye an important part of the truth of what happened to him.
Plaintiff’s contentions
There is no challenge to the validity of the original order or to the nature of the consent by which it was obtained. Counsel for the plaintiff submitted the order should be set aside because two of three grounds initially advanced for the order no longer exist, in essence that circumstances have changed. The third ground, of causing embarrassment and emotional trauma to relatives of the defendant, was insufficient in itself to justify maintaining the order.
Initially, counsel for the plaintiff seemed to suggest that there was no evidence of the potential for psychiatric harm arising from publication at the time the pseudonym order was made. This was a rather surprising submission since that proposition was put by the plaintiff on the application to Daly AsJ in an affidavit and consented to by the defendant. There was, at that time, by reason of that affidavit and the consent minute, a sufficient basis for the court to act. Moreover, before me, there was no attack on the making of the pseudonym order, whether by seeking to impugn the consents given for it, or on any other ground. Further, there is now no basis in the evidence to make any finding about the impact of publicity on any risk to the plaintiff’s mental health, whether at the time the proceeding was commenced or at the present time. The concerns and beliefs expressed by the plaintiff’s solicitor on this issue are inadmissible hearsay and, objection having been taken, I do not rely upon such statements.
The plaintiff contended that the court needs to be satisfied that the pseudonym order is presently necessary for the proper administration of justice. Regard must be had to the change in circumstances. The plaintiff perceives that the only effect which the pseudonym order now has is to shield the identity of the deceased from scrutiny and hide an important part of the truth of what happened to him away from the public eye. What the plaintiff believes is, it is submitted, relevant to the proper administration of justice. The plaintiff no longer requires the pseudonym orders and they are no longer necessary. The plaintiff does not want to be prevented from talking about the fact that he issued these proceedings. Relying on ABC v D1; D2; D3 and D4,[2] if the plaintiff is not free to talk about the fact that he issued this proceeding there is a real risk of prejudice to the administration of justice. It matters not that the orders were made at his request and that he withdrawing the allegations made. The plaintiff is discontinuing because the estate has no assets.
[2][2007] VSC 480 (J Forrest J).
Herald Sun’s contentions
The Herald Sun’s primary submission was that paragraph 5 of the pseudonym orders ought be vacated. Alternatively, if not vacated, the paragraph ought be amended by extending the words qualifying sub-paragraph 5(d) to qualify each sub-paragraph of paragraph 5. In this way, that paragraph of the order would, it was contended, be in identical form to the order made by Osborn J which was the subject of the application before Forrest J in ABC.
Mr Quill contended there has been a hearing in the proceeding and the court must now consider whether it is necessary to restrict reporting of this hearing. Whether the pseudonym order was appropriate when made is not the question. Rather, the issue is whether an order ought now be made under s 18 of the Supreme Court Act. By reference to s 19(b), the issue is whether it is necessary, in order not to prejudice the administration of justice, to vacate the pseudonym order presently restricting reporting. The court ought not permit a continued operation of the pseudonym order if it is not necessary. Because the pseudonym order will have continuing operative effect notwithstanding the withdrawal of the proceeding, the Herald Sun is thereby affected. It is bound by the order, but not a party to the proceeding. The principle of open justice is compromised where the proceedings before the court cannot be fully and completely reported by the Herald Sun.
Further, Mr Quill suggested it cannot be contended that the names of the parties to a proceeding are unimportant and for that reason can be suppressed.[3] Nor can it be contended that embarrassment, which might be suffered by the parties if their identities were not suppressed, can as a matter of law be taken into account when making a pseudonym order.[4] Despite sympathy for avoiding embarrassing, damaging and even dangerous facts coming to light, open justice must prevail.[5]
[3]Herald and Weekly Times Ltdv The Magistrates’ Court of Victoria (1999) 2 VR 672; [1999] VSC 232.
[4]Ibid.
[5]John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131, 142.
Contending that ss 18 and 19 of the Supreme Court Act must be narrowly construed, being statutory provisions which are designed to derogate from the open administration of justice[6], Mr Quill submitted that the provisions enlivening the discretion under s 18 were no longer operative. Although the ability of the Herald Sun to publish generally regarding the allegations made by the plaintiff, that is without breaching the pseudonym order, is acknowledged, the question is, Mr Quill submitted, whether it is necessary, in order not to prejudice the administration of justice, for the Herald Sun to be prohibited from reporting that a proceeding, which was subsequently discontinued by consent, was taken against the estate. The fact that a trial will never occur, as the proceeding has been withdrawn by the plaintiff, is irrelevant to that question. Proceedings are more often than not settled and do not proceed to trial; that is not a basis for making, or continuing, a suppression order. Circumstances have changed and the s 18 issues must be considered afresh.
[6]Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47, 55 and Herald and Weekly Times Ltdv The Magistrates’ Court of Victoria, op cit, 677.
Mr Quill submitted there is a hearing. The administration of justice is invoked. The issue is the exercise of the discretion on costs. It has not been demonstrated that the continued operation of the pseudonym order is necessary not to prejudice the administration of justice. It should therefore be lifted. Every time a suppression order issue comes up, the court must consider all the factors at play, as those factors will be different at different stages in a proceeding. The court ought not allow the order to continue when the court is not satisfied on the material before it that the continued operation of the order is necessary in the sense required by s 19 of the Act. This is a high standard as the bias is strongly in favour of open justice.
Defendant’s contentions
For the defendant, Mr Beaumont QC, who appeared with Ms McMillan SC, submitted the principles to be applied on the plaintiff’s application are set out in ABC v D1; D2; D3 and D4.[7] This decision has been referred to with approval or followed on numerous occasions by other judges of this court.[8] The Court is entitled to infer that Daly AsJ applied these principles when making the consent orders.
[7][2007] VSC 480 (J Forrest J) at [26]–[32], [65]–[71].
[8]AX & Anor v Stern [2008] VSC 400 (Warren CJ); Anon 2 v XYZ [2008] VSC 466 (Kaye J); AB v D1 [2008] VSC 371 (Kyrou J); XG v Medical Practitioners Board of Victoria [2010] VSC 79 (Emerton J); Psychology Board of Australia v D [2010] VSC 375 (Mukhtar AsJ); ESB v Victoria [2010] VSC 479 (Kryou J).
The defendant contended that the burden of persuading the court to exercise a discretion to change the status quo, and that is what the application is, falls upon the plaintiff and the Herald Sun as the moving parties. Given that the status quo is established by a consent order, that burden is not to be seen as one which might lightly be discharged.[9] The plaintiff’s application is made on “mere belief” expressed either by the plaintiff or his solicitor - there is no proper evidentiary basis for setting aside the pseudonym orders. It is an application which ought to have been supported by psychiatric evidence. In any event, Mr Beaumont contended, the reasons why the plaintiff now withdraws the allegations were known to him before the pseudonym order was made. So much appears from the exhibits to the affidavits. Nothing has changed.
[9]Booth v Ward & Ors (2007) 17 VR 195 at [45].
The defendant urged the court to infer that the real moving party for the setting aside of the pseudonym order is the Herald Sun, which does not read or tender any material in support. Bearing in mind Mr Quill’s statement that his client’s employee journalist had, predating the pseudonym order, and continues to have an ongoing interest in this story, it can more readily be inferred in the absence of any affidavit that the Herald Sun has been aware of the order but chose not to apply to set it aside earlier.
The defendant will, it was submitted, be prejudiced if the consent pseudonym order is discharged. The defendant agreed to act as litigation representative. It has changed its position. Confidential material has been disclosed. Hurt and embarrassment may be felt by relatives unable to effectively respond to newspaper articles. Herald and Weekly Times Ltdv The Magistrates’ Court of Victoria is distinguished from this situation on its facts. There is no public interest in the identification of the names of litigants when the plaintiff’s allegations are being withdrawn from adjudication. The consent order should not be varied to accord with the order made by Osborn J in ABC. The order was made in the form of the consent minute submitted by the parties to the associate justice. The plaintiff cannot, and ought not, be permitted by withdrawing the proceeding from the court, to resile from a consent position in the absence of a further agreement (or consent).
Mr Beaumont invited the court to infer that the reason each of the plaintiff and the Herald Sun now seek to set aside the pseudonym order is not to report that the plaintiff is declining to proceed to test his allegations in a trial in this court. Rather, the plaintiff seeks to attract further publicity to his allegations against the deceased by a “trial” in the pages of the Herald Sun, and to do so when the allegations are no longer to be subject to adjudication by the court in the proceeding. So much is clear, it was put, from the reasons given by the plaintiff in his affidavit and from the support of the application by the Herald Sun. However, there can be no prejudice to the administration of justice where the court no longer plays any role in relation to the allegations. Justice is not administered in the pages of the Herald Sun. Further, the court should have regard to the fact that the allegations were made publicly, and denied, during the deceased’s lifetime. Now, the deceased’s only opportunity to further respond, by the defence of the allegations when made in court, would be lost were the court to lift the pseudonym order as well as permitting the withdrawal of the proceeding.
The defendant submitted there is a distinction between an adjudicative role in the administration of justice, such as is involved in a trial, and an administrative role, such as making directions on the papers or recording withdrawal by consent of a proceeding. In the latter case, because the plaintiff’s allegations are being withdrawn from adjudication, the rights of the parties are not being determined according to law. The manner and extent to which it can be said that justice is being administered is far removed from the context in which that expression is used in the application of the open justice principle.
Finally, Mr Beaumont contended the present application is an abuse of process. This is not an application for leave to appeal from the associate justice. The plaintiff seeks, in substance, to review, rehear, vary or set aside a consent order other than by way of appeal. The limited circumstances in which a court may do so are not here engaged. The plaintiff and the Herald Sun inappropriately seek a forensic tactical advantage by this application. The abuse of process is founded on the fact that the plaintiff has chosen to make allegation to the court on an pseudonym basis and now seeks to expose the identities of the parties that are the subject of the allegations through the respective effect of discharging the order when the plaintiff is withdrawing the allegations from the court.
Principles to be applied
The Chief Justice of Australia recently had occasion to review the authorities in connection with the open justice principle, albeit in a different context, in Hogan v Hinch.[10] French CJ said:
The open hearing is an essential characteristic of courts, which supports the reality and appearance of independence and impartiality. Its corollary is the freedom to make a fair and accurate report of what transpires in court proceedings, including the orders made by the court. However, at common law the open justice principle has, consistently with the judicial function, long been subject to qualifications reflected in the inherent jurisdiction of courts or their implied incidental power to hear part of their proceedings in camera and to restrict the publication of evidence or the names of witnesses.
This is the starting point for my consideration of the issues.
[10][2011] HCA 4, at [20]–[27], [46].
That the principle is not absolute has long been accepted and, in the exercise of a superior court’s inherent jurisdiction, the application of the open justice principle may be limited.[11] Limiting the scope of operation of the principle may be necessary to secure the proper administration of justice. Parliament has recognised that this is so, enacting ss 18 and 19 of the Supreme Court Act which have here been called in aid. Section 19 sets out the circumstances in which an order may be made under s 18. The fundamental nature of the open justice principle requires that statutory provisions are to be construed, where constructional choices are open, in a manner which minimises the intrusion upon the open justice principle. It is not the case that the s 19 categories cover the field. Every case turns on its own facts. New circumstances, where restriction of the open justice principle might be extended, will not be easily identified.
[11]Ibid.
Section 19(b) – prejudice to the administration of justice – incorporates many of the circumstances identified in the cases. It is now well recognised[12] that cases involving sexual assaults regularly, and appropriately, attract pseudonym orders. This is for a variety of reasons, depending on the individual case. Great pain and loss can be experienced by those touched by what is publicised and the administration of justice requires that detriment to individuals ought not be needlessly inflicted. It has been observed that the interest of individuals may need to be sacrificed to the greater public interest of open justice.[13] What is required is a proper balancing of the competing interests.
[12]ABC v DI & Ors [2007] VSC 480 at [44].
[13]See, for example, John Fairfax Group Pty Ltd (receivers and managers appointed) & Anor v Local Court of New South Wales & Ors (1991) 26 NSWLR 131.
Commonly, parties might be deterred from bringing or concluding proceedings unless public disclosure of their identities could be prevented or because part of the injury complained of may be exacerbated by public disclosure. Thus, it is regarded as being necessary in the interests of the proper administration of justice that orders be made to encourage such plaintiffs to litigate their allegations, seek redress through the courts and, in proper cases, do so without unreasonable risk of aggravation of their injuries. Plainly such considerations which were apparent to the associate justice on the material proffered for the consent order.
However, I am not asked, at least explicitly, to reconsider this order. The application before me is not an appeal from the associate justice. There is no challenge to the foundation of that order. Rather, it is contended that circumstances have changed and I should reconsider whether, in order not to prejudice the administration of justice, I should make an order under s 18 of the Supreme Court Act, or, presumably, the court’s inherent powers, varying the pseudonym order. This issue raises three concerns. Should the court revisit the earlier order of the associate justice in these circumstances? What, relevantly, is the change in circumstances? How is it said that the administration of justice will be prejudiced if no order is now made?
On the first question, it is submitted by the defendant that should I consider that the pseudonym order should not remain standing, my decision must have a retrospective effect. The Herald Sun agreed. Save as to the timing of disclosure, further publicity, if now permitted, could create a situation as if the order had not been made, at least in the sense that the identities of the parties and the nature of the allegations made could now be revealed. The defendant submitted that QQQ’s consent to act as representative of an insolvent estate enabling the proceeding to commence was obtained in return for the pseudonym order and that change in position could not be reversed. The defendant further submitted it disclosed confidential material to the plaintiff which would not otherwise have been disclosed. I am unable to make any finding that such disclosure occurred or, assuming there was disclosure, as to the nature and effect of it. There is no material before the court enabling me to do so.
The defendant also submitted that a further basis to not revisit the order is that the application for reconsideration of the pseudonym order is an abuse of process. An application amounts to an abuse of process when the predominant purpose of the moving party is use the process of the court to effect an object not within the scope of the process, or for a purpose other than that for which the application is properly designed, or to secure some collateral advantage beyond what the law offers[14]. The application may be an abuse of process even if the party has a prima facie case. I accept that the moving parties here have a prima facie case for reconsideration of the pseudonym order. I consider this to be so because of the importance of the principle of open justice. A court will never accept restriction on the open justice principle as being the default position.
[14]Packer v Meagher [1984] 3 NSWLR 486; Goldsmith v Sperrings Ltd [1977] 2 All ER 566; Williams v Spautz (1992) 174 CLR 509; (1992) 107 ALR 635; Coe (on behalf of the Wiradjuri tribe) v Commonwealth of Australia & Anor (1993) 118 ALR 193; (1993) 68 ALJR 110; Trade Practices Commission v TNT Australia Pty Ltd (1994) ATPR 41-296 (FCA); Flower & Hart (a firm) v White Industries (QLD) Pty Ltd (1999) 87 FCR 134; (1999) 163 ALR 744; [1999] FCA 773.
For reasons I will shortly explain, there are material distinctions to be drawn between the trial of a proceeding and the processes of the court which precede it, particularly where those processes do not involve the determination of any issue joined between the parties, such as consent procedural orders and directions. When a trial is about to commence, the essential essence of the administration of justice by a court, to hear and determine claims, both sound and unsound, in a proceeding between the litigants is being engaged. This may, and often will, amount to a change in some of the material factors to be considered in the application of the open justice principle. For my part, I would expect a court to look afresh, when the time for trial has arrived, at the necessity for a pseudonym order, made on an interlocutory basis.
For this reason I will turn to identifying the changed circumstances and the issue of prejudice to the administration of justice before returning to the question of abuse of process. The relevant circumstances to be considered are identified by the fourth, sixth and seventh principles enunciated by Forrest J in ABC v D1 & Ors.[15] They are:
68 Fourth, that a court, in determining whether to make a pseudonym order, is entitled to take into account the individual considerations affecting the person seeking the order and balance those against the principal rule of open justice in determining whether the administration of justice warrants the making of the order. Relevant to these individual considerations is whether there is a real risk of the party or witness suffering psychological harm as a result of publication of his or her name or the names of other parties. Also relevant is the real risk of a party not proceeding with an action in the event that he or she or another person is identified.
…
70 Sixth, that in determining whether to make such an order, a court is entitled to take into account the fact that there will still be a reporting of the proceeding and that the hearing itself will be conducted in open court, subject to the restrictions imposed by the pseudonym order.
71 Seventh, in determining whether it is necessary to make such an order, usually the proofs must be cogent and will not be satisfied by mere belief on the part of a party that the order is necessary. However, in certain cases a court can, in a practical sense, act on its own experience and draw appropriate inferences.
[15]Op cit, at [68]ff.
Is there any change in individual circumstances affecting the persons who obtained the order? In this case, that question is asked about both parties to the proceeding. The most significant change is that the plaintiff no longer wishes to have the court determine whether his claims in the proceeding, which the defendant denies, can be made out. The plaintiff has changed his intention to “seek justice” from the court. Why he has changed his intention does not matter. Even if that was relevant, the reasons the plaintiff now gives refer to matters known to him before the pseudonym order was made. There is no change of circumstances in that respect.
It is the plaintiff’s right to withdraw his proceeding from adjudication by the court. The requirement that he seek the consent of the defendant or seek leave from the court to do so, under Rule 25.02 of the Rules, is not directed at compelling a plaintiff to litigate against his will. Leave to a plaintiff to discontinue will normally be granted when sought. The court’s attention focuses on conditions to ensure no injustice will be caused to the defendant.[16] Commonly, it is the question of costs, incurred prior to the withdrawal of the claim, that are the defendant’s concern. That is not the case here. I find that the plaintiff’s change of mind about prosecuting his claims is not a relevant change in circumstance.
[16]Covell Matthews & Partners v French Wools Ltd [1978] 2 All ER 800; [1978] 1 WLR 1477; Stahlschmidt v Walford (1879) 4 QBD 217; Robertson v Purdey [1906] 2 Ch 615; Ritz Hotel Ltd v Charles of the Ritz Ltd [No 8] (1987) 12 IPR 75; O’Neill v Mann [2000] FCA 1680.
The plaintiff submitted that circumstances had changed in other respects. The plaintiff now does not want to be prevented from talking about the fact that he issued these proceedings. The pseudonym order is, counsel submitted, shielding the deceased from scrutiny and hiding from the public eye an important part of the truth of what happened to the plaintiff. I do not accept that these are changed circumstances. This submission is confused. The plaintiff is not restrained from talking about what happened to him, that is, the events he alleges caused injury to him. In that respect nothing is hidden from the public eye. Nor do I consider that the deceased is being shielded from scrutiny by the pseudonym order. Any loss of opportunity, in the due administration of justice, for scrutiny of the merits of the defence of the deceased is a consequence of the withdrawal by the plaintiff of his proceeding. Finally, as I have already stated, there is no basis in the evidence to make any finding about the impact of publicity on any risk to the plaintiff’s mental health, either at the time the proceeding was commenced or at the present time.
The defendant, on the other hand, contends that its position has been changed in reliance upon the consent pseudonym order. The defendant’s consent enabled the proceeding to be brought by the plaintiff. As the consent pseudonym order was a matter relied on by QQQ in agreeing to act as representative of an insolvent estate, there has been a material change in position by the defendant. Other detriment to the defendant following upon the issue of the proceeding has not been established. While the defendant’s change in position is not a complete answer, it is a relevant consideration. The weight to be afforded to this consideration may be increased by the absence of any proper explanation from the plaintiff why it ought be permitted to resile from its consent to the pseudonym order being made, in the context of having induced the defendant to agree to be the litigation representative of the estate.
I do not consider there can be prejudice to the administration of justice in the circumstances of this proceeding. All that the court has done is make a consent order recording that the proceeding is discontinued with no order as to costs. That order was made in open court, subject to public scrutiny and reporting. Of course any reporting is, prima facie, subject to the pseudonym order. In making such orders, the identity of the parties and the nature of the allegations are not significant in the manner discussed by Beach J in Herald and Weekly Times Ltdv The Magistrates’ Court of Victoria.[17] The court has not entered upon any controversy between the parties. The court was not called upon to exercise any discretion, whether to grant leave, or as to how the costs burden might fall. I reject Mr Quill’s contention that there has been a hearing or that the administration of justice is being invoked in the exercise of the discretion on costs.
[17](1999) 2 VR 672; [1999] VSC 232.
I consider it clear that the administration of justice is not invoked, to the contrary it is disengaged, when a proceeding is withdrawn without adjudication, whether on the merits of the claims made or on any other matter. Justice is not administered when the controversy is withdrawn from the courts. The claims might become the subject of another proceeding. In ordinary circumstances, it can hardly be contended that the court is unable to determine the later proceeding because of the manner of disposition of this proceeding. In that context, I refer generally to the principle that an adjudication of an interlocutory character will usually not suffice to found an estoppel by record.[18]
[18]In estoppel cases the test is whether it is reasonable to regard the interlocutory decision as a final determination of the issue. See generally, Somodaj v Australian Iron and Steel Ltd (1963) 109 CLR 285 at 296; [1963] HCA 50; Joseph Lynch Land Co Ltd v Lynch [1995] 1 NZLR 37 at 43 (CA); Makhoul v Barnes (1995) 60 FCR 572 at 583; Re Martin; Ex parte Amtron Australia Pty Ltd (1996) 62 FCR 438; (1996) 141 ALR 117; Mullen v Conoco Ltd [1998] QB 382 at 391; Castillon v P & O Ports Ltd (No 2) [2008] 2 Qd R 219 at [49]–[58]; [2007] QCA 364.
The nature of the judicial function engaged and whether any controversy is determined was considered by Kaye J in Anon 2 v XYZ.[19] This proceeding concerned an application by the Herald Sun for discharge of pseudonym orders made before the issue of proceedings, in respect of the identity of both the plaintiff and the defendant. The plaintiff claimed damages against the defendant, described in the judgment as a “prominent sportsman”, for a sexual assault. The proceeding was yet to be the subject of any hearing before the court involving any controversy or contest. All that had occurred were directions hearings, largely administrative and mostly conducted on the papers. His Honour reasoned that there is substantially less, if any, force in the underlying rationale of open justice, where, to all intents and purposes, a proceeding has been issued, and has not, in a real sense, been the subject of any hearing in court. His Honour accepted, as do I, the application of the principle of open justice, but reasoned that the requirements of open justice do not carry the same imperative when a case is not the subject of a contested court hearing, whether at trial or in an interlocutory setting. Kaye J concluded that any administration of justice undertaken by any judicial officer of this Court in that case had been almost entirely of an administrative type. Documents forming process in the Court Registry are, his Honour noted, not subject to the same principle, and his Honour cited three cases illustrating the operation of the distinction.
[19][2008] VSC 466.
In Smith v Harris,[20] Byrne J held that s 4 of the Wrongs Act 1958 (granting immunity to fair and accurate reports of proceedings in any court of justice), and the common law defence of qualified privilege, do not apply to the publication of process, filed in a court, which has not been the subject of a court hearing. The principle of open justice is the primary reason why qualified privilege is accorded, at common law, to a fair and accurate report of court proceedings.[21] Kaye J commented that it is significant that that principle has been held not to justify or require the extension of qualified privilege to those aspects of court process, which have not been the subject of a hearing in court.
[20][1996] 2 VR 335.
[21]Webb v Times Publishing Co Ltd [1960] 2 QB 535, 559-560 (Pearson J); Taylor v Hawkins [1851] EngR 169; (1851) 16 QB 308, 321 (Lord Campbell CJ); Lucas & Son (Nelson Mail) v O’Brien [1978] 2 NZLR 289, 302-303 (Richmond J); Kimber v The Press Association Ltd [1893] 1 QB 65, 68-69 (Lord Esher MR), 75-76 (Kay LJ); Allen v John Fairfax & Sons Ltd [1971] 1 NSWLR 773, 778-780.
Next, Kaye J drew attention to the Tasmanian decision of R v Clerk of Petty Sessions, Court of Petty Sessions Hobart; Ex parte Davies Brothers Ltd[22] where distinction between the application of the open justice principle to court proceedings and its inapplicability to process filed and not referred to in court is demonstrated. The proceeding concerned criminal charges for sexual offences where, before a lower court when pleas were taken, the details of the complaints made were not revealed. The magistrate rejected the request of a daily newspaper for details. The court rejected the contention that making the complaints against the accused, without more, entitled the applicant to obtain the detail of the complaints. The court held that the making of a complaint does not attract the requirement of “‘open justice”‘ unless and until it becomes an issue between the parties, as it does not attract “‘public interest”‘ immunity unless and until it enters the public forum of a court. Prerogative relief was not granted because the complaints had been made. It was granted because the complaints had been the subject of proceedings before the Magistrate, and the proceedings, including the accused’s plea to the complaints, attracted the principle of open justice.
[22](1998) 8 Tas R 283, 293 (Slicer J).
A similar issue arose in John Fairfax Publications Pty Ltd & Ors v Ryde Local Court & Ors,[23] the last of the cases to which Kaye J referred. An interim apprehended domestic violence order was obtained by telephone against the “fourth opponent”, a serving magistrate in New South Wales. Shortly thereafter, a magistrate made an order, by consent, continuing that interim order. Access sought, by a daily newspaper, in the local court registry to the originating documentation in respect of those proceedings was refused. The newspaper then claimed, without success, in the New South Wales Supreme Court, prerogative and declaratory relief in relation to that ruling. On appeal, Spigelman CJ observed that “the principle of open justice is not engaged at the time of the filing of the proceedings. It is only when relevant material is used in court that it becomes relevant” referring to the decision of Byrne J in Smith v Harris.
[23][2005] NSWCA 101; (2005) 62 NSWLR 512.
Based on these authorities, Kaye J identified, with due respect correctly in my view, that:[24]
there is a strong body of authority for concluding that the principle of open justice does not apply with the same force and vigour, where a proceeding has not been the subject of a genuine hearing in court, as it does to court hearings involving the exercise of judicial functions and determination. That authority is based on the justification and basis of the open justice precept, namely, the fundamental principle that the judicial process be open to public scrutiny and comment. That justification has diminished relevance to process filed in court, in respect of which the judicial function has not yet been engaged.
[24]Op cit at [28].
In Hadid v Lenfast Communications Inc[25] Hill J considered the meaning of the word “hearing” in the context of s 50 of the Federal Court of Australia Act 1976 (Cth), which is to similar effect to s 18 of the Supreme Court Act, when rejecting an argument that because s 50 referred to “the hearing of a proceeding” it did not apply to the matter at hand which was still at an interlocutory stage. His Honour declined to accept the narrow interpretation sought to be given to the word “hearing” in s 50. It is not limited, his Honour held, to the trial of a proceeding, being equally apt to refer to a “directions hearing” or an “interlocutory hearing” as it is to a hearing on the merits. His Honour observed that had the word “hearing” been used in s 50, together with the words “on the merits” or some such expression, a narrow interpretation might have been preferred. The power to suppress the name or names of parties and witnesses conferred by s 50 would be somewhat hollow if restricted to the period during and after the trial and not capable of exercise at the earliest possible time.
[25](1996) 70 FCR 403.
While these observations may appear superficially to support the contentions for the Herald Sun, the decision and reasoning in that case can be distinguished, not only by reference to the different statutory language in issue but also to the circumstances of that case. The proceeding was a commercial proceeding, involving causes of action under the Trade Practices Act. Section 50 was being invoked, without success, to deny access to documents which were commercially confidential or sensitive.
In a different context, in Helmer v State Coroner of Victoria,[26] Habersberger J referred, with apparent approval, to the reasoning of Kaye J in Anon 2 v XYZ when considering whether “a hearing” of the plaintiff’s application to the Supreme Court under s 59 of the Coroners Act 1985 had “begun” before the commencement day of the Coroners Act2008. All that had occurred was that the summons on the originating motion had been adjourned four times by consent on the papers, without appearance by or on behalf of either party on any of these occasions. His Honour noted Kaye J’s conclusion that the proceeding which had merely been issued had not, in a real sense, been the subject of any hearing in court. It was not necessary for Habersberger J to decide when a hearing would begin. This point did not arise on the facts of that case: none of the four consent adjournments on the papers in that case could be described as a “hearing”. His Honour’s obiter suggestion was that, at the very least, for a “hearing” to have “begun” would involve some oral exchange in court. Even an oral consent to an adjournment without more might not constitute the beginning of a “hearing”. This had clearly not occurred in Helmer because no party had ever appeared in open court.
[26][2011] VSC 25.
Again, care is needed because of the different statutory context and factual circumstances in drawing any assistance from this decision in support of the position of any party in this proceeding. I do not consider that either Helmer or Hadid derogates from the principle as stated in ABC. The hearing of the allegations made by the plaintiff did not begin before me. There was no oral exchange in that context.
I conclude that the justification and basis of the fundamental principle that the judicial process be open to public scrutiny and comment has diminished relevance here because the plaintiff has withdrawn the proceeding from a genuine hearing in court, that is, a hearing involving the exercise of judicial functions and determination. The administration of justice not being engaged, because the proceeding has been withdrawn, there cannot therefore be prejudice to the administration of justice. The open justice principle is limited when its application to process filed in court is in issue. It is unnecessary to make any order under s 18 affecting a pseudonym order which operates only in respect of such documents. If a change of heart warrants reconsideration of a pseudonym order made by consent, the obvious method for the plaintiff to achieve that result was the method he initially adopted, that is, by agreement. The defendant may not have agreed to the withdrawal of the proceeding on the terms sought by the plaintiff if those terms had included the setting aside of the pseudonym order.
The Herald Sun was not involved in any negotiations or agreements. It is not constrained in reporting or publicising the plaintiff’s allegations unless, speaking generally, it does so on the basis that such allegations are related to this proceeding and it, in that or some other way, breaches the pseudonym order. Its support for the plaintiff’s application must fail because the plaintiff’s application fails. Mr Quill clarified that the Herald Sun in fact only makes application if the plaintiff is not making any application which the Herald Sun could support. In any event, for the reasons I have given, any application made directly by the Herald Sun will also fail.
What then emerges as the predominant purpose, in the objective sense of “effect” rather than the subjective sense of “intention”, of the moving parties in making this application? An inquiry about purpose flows from the alternative submission by the defendant that the application is an abuse of process. The conduct of proceedings in accordance with the open justice principle is a process which the court will protect from abuse. It is not an absolute principle.[27] The question is whether the predominant purpose in bringing the application, or the object of it, is to avoid prejudice to the administration of justice. If it is not, the use or threatened use of the open justice principle in support of an application to discharge a consent order may be an abuse of process. Where the application is not brought in aid of the administration of justice, but is being used as a means of obtaining some collateral advantage beyond what the law offers in the circumstances, the application is brought predominately for an improper purpose. It is not necessary that any improper act by the moving parties be shown. It has been said repeatedly in judgments of the High Court that the categories of abuse of process are not closed. Courts have an inherent power to prevent misuse of their procedures in ways which, although not inconsistent with the literal application of procedural rules, would nevertheless be manifestly unfair to a party to litigation or would otherwise bring the administration of justice into disrepute among right-thinking people.[28]
[27]Hogan v Hinch, op. cit., at [20].
[28]See generally Williams v Spautz (1992) 174 CLR 509; Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378; Coe v Commonwealth of Australia (The Wiradjuri Claim) [1993] HCA 42; (1993) 68 ALJR 110; Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd; Jeffery & Katauskas Pty Limited v Rickard Constructions Pty Limited [2009] HCA 43.
The purpose or object of the application has not been expansively elucidated by either of the moving parties. It is a matter for inference. The plaintiff and the Herald Sun have, I expect, different purposes or objectives. In a different context in Aon Risk Services Australia Limited v Australian National University,[29] but nonetheless one concerned with the objective of doing justice between parties according to law, the plurality commented that generally speaking, where a discretion is sought to be exercised in favour of one party and to the disadvantage of another, an explanation will be called for. Here the importance normally afforded to factors such as consent to orders and respect for open justice, require that the moving parties should explain the basis upon which the court is being asked to act. Not only should that explanation show that the application is brought in good faith, but it should bring the circumstances giving rise to the need for reconsideration of the pseudonym order to the court’s attention, so that they may be weighed against the fact of consent, the withdrawal of the proceeding from adjudication before the court and the objectives of the open justice principle. There can be no doubt that a proper explanation was required in this case.
[29][2009] HCA 27 at [103].
The plaintiff, for his part, does not want to be prevented from talking about the fact that he issued these proceedings despite his refusal to proceed to trial and obtain the court’s verdict. I infer in the circumstances that the plaintiff intends to suggest that the want of justice, of judicial vindication of his allegations, flows from an inability to convert any judgment into money because of the insolvency of the estate. It being economically pointless to proceed with a trial would seem not to be an impediment to assert a belief that, despite the denials by the defence, the deceased is shielded from scrutiny and hiding, behind an insolvent estate, the truth of what happened to the plaintiff. Vindication of rights by judicial determination is not a guarantee of financial return.
It must be inferred that, on the probabilities, the Herald Sun for its part is considering publishing further about the plaintiffs allegations. Mr Quill said he had no instructions about whether there would be any further publication by his client. Thus, the content of any further publication is not revealed to the court. Mr Quill submitted his client seeks merely to advocate the open justice principle. That proposition might more readily be accepted if the application had been made at an earlier point in time. There is no affidavit on which the Herald Sun supports the plaintiff’s application, identifies its particular interest on this application or otherwise explains its intentions. There was, in these circumstances, no explanation offered by the Herald Sun of its position, notwithstanding that it invites the court to exercise a discretionary power in its favour. Further, there was no explanation of its failure to put on material.
In the absence of evidence, when an affidavit might readily have been put on, I have regard to the limited statements on oath from the plaintiff, and the content of one of the articles previously published by the Herald Sun under the by-line of the journalist who was present in court, the substance of which I do not propose to set out in this judgment. I infer that the purpose for which the Herald Sun seeks to be able to report on the plaintiff’s allegations in any further article, in conjunction with a reference to the plaintiff having commenced but withdrawn the proceeding, is probably one by which the prospect of the plaintiffs allegations being true is suggested as probable because the plaintiff may have, by financial constraints, been denied the opportunity to vindicate his allegations. This or a like inference may be drawn as there is no impediment to further reporting of the plaintiffs allegations per se, provided the pseudonym order is observed, on the basis that they are just that, allegations not tested in a court. However, that would seem inadequate for the Herald Sun’s purposes.
If this is the correct inference, it is probable that the discharge or variation of the pseudonym order will be inconsistent with the administration of justice with fairness and impartiality. As I have noted, there has not yet been any administration of justice by a court. The application can have no bearing on the merits of the proceedings, nor on the way in which the proceedings might have been conducted. Rather, the plaintiff’s untested allegations are withdrawn from the processes and procedures of the court, which exist to justly, fairly and impartially hear and evaluate such untested allegations. The plaintiff’s allegations are then likely to be taken up in the pages of a daily newspaper, which does not purport to administer justice with fairness and impartiality.
It is probable, in my view, that the disclosure of matters now the subject of the pseudonym order if it was discharged or varied may, in the circumstances, convert the proceeding into an instrument of injustice or unfairness. The plaintiff obtained a representative for an insolvent estate to stand as a defendant in a proceeding to allow him to seek vindication of his allegations, whether or not he also obtained financial compensation, by agreeing with the defendant to a pseudonym order for their mutual benefit. To now permit one party to the litigation to effectively withdraw that consent is manifestly unfair to the other party. Rather than permitting expression of the open justice principle, when the adjudication of the court is not sought, the application is not a proper use of the court’s procedures. The exposure of the defendant to the allegations, not made in court but in a newspaper in the manner which I infer is probable, would be a consequence which, among right-thinking people, may bring the administration of justice into disrepute.
In these circumstances, I consider the oral application, by the plaintiff supported by the Herald Sun, under s 18 of the Supreme Court Act to vary the consent pseudonym order upon withdrawal of the proceeding, seeks to effect an object not within the scope of the court’s process, or a purpose other than that for which such an application is properly designed, and seeks to secure some collateral advantage beyond what the law offers.
The application to discharge or vary the pseudonym order will be refused for the reasons given, above at [55], and I will also refuse to discharge or vary the pseudonym order on the basis that such application is, in these circumstances, an abuse of process.
I will prohibit publication of the contents of the affidavits noted above at [13] filed in court in support of this application and I direct that those affidavits be placed on the court file in a sealed envelope to be held by the Registrar of this Court, not to be opened unless by order of a Judge.
I will hear any application for costs, including as to who shall pay the transcript costs.
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