RN v Commonwealth of Australia
[2014] VSC 289
•23 JUNE 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
| RN | Plaintiff |
| V | |
| COMMONWEALTH OF AUSTRALIA and | |
| G4S AUSTRALIA PTY LTD (ACN 100 104 658) | Defendants |
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JUDGE: | DIXON J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 13 JUNE 2014, FURTHER SUBMISSION: 18 JUNE 2014 |
DATE OF JUDGMENT: | 23 JUNE 2014 |
CASE MAY BE CITED AS: | RN v COMMONWEALTH OF AUSTRALIA |
MEDIUM NEUTRAL CITATION: | [2014] VSC 289 |
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PRACTICE AND PROCEDURE – pseudonym order – application by proposed plaintiff to suppress publication of name in proposed proceeding – discretionary considerations – Open Courts Act 2013, s 7(d), 17
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Maurice Blackburn |
HIS HONOUR:
On 13 June 2014, solicitors acting for the proposed plaintiff made an oral application without notice to me as the judge in charge of the Major Torts list. The proposed plaintiff sought an order enabling him to commence and to continue a proceeding using a pseudonym. Court documents would identify the proposed plaintiff by use of the letters “RN” but publication would not be prohibited of anything relating to the proceedings. Rather, the parties would use in court or in connection with the proceeding the letters “RN” to identify the proposed plaintiff. In addition, the proposed plaintiff seeks an order that those documents used in this application that identify him, being his affidavit sworn 17 June 2014 and the exhibit to the affidavit of Jane Sophia McDermott sworn 18 June 2014 but not the summons, and other affidavits on which this application is based, remain confidential to the plaintiff and his advisers.
For the reasons that follow, I will grant the application for a pseudonym order and I will order that the plaintiff’s affidavit sworn 17 June 2014 and Exhibit “JSM-1” to the affidavit of Jane Sophia McDermott sworn 18 June 2014 be placed on the Court file in a sealed envelope only to be opened on the order of a judge.
An affidavit sworn by the proposed plaintiff and two affidavits sworn by his solicitors deposed to the material facts upon which the plaintiff’s claim will be based, although no draft statement of claim was exhibited.
The proposed plaintiff intends to institute proceedings against the Commonwealth of Australia and G4S Australia Pty Ltd seeking compensation for injuries he sustained in an incident that occurred at the Manus Island Detention Centre in Papua New Guinea on 17 February 2014. The proposed plaintiff when in the Mike Compound at the detention centre was struck in the face by a rock thrown by an unknown person. The severity of the blow ruptured his right eye, which has since been removed, and he is presently awaiting an artificial lens. He also sustained facial fractures.
The proposed plaintiff was born in Tehran and is aged in his mid-thirties. He fled Iran in 2013 because he feared for his life at the hands of Iranian security forces. From Indonesia, he boarded a boat for Australia, which was intercepted at Flying Fish Cove on Christmas Island. The proposed plaintiff was transferred from Christmas Island to the Manus Island Detention Centre and had been housed in the Mike Compound for some weeks before the incident.
Broadly, the proposed plaintiff advances two reasons for seeking a pseudonym order -
(a)he would be reluctant to commence any proceeding if his identity must be revealed; and
(b)proceeding without a pseudonym is likely to occasion him physical and psychological harm.
Initially, the proposed plaintiff relied on one affidavit in which an employee of his solicitors deposed on information and belief to some matters. I entertained some initial reservations. The proposed plaintiff had not at that stage sworn an affidavit in support of the application, which deprived the court of direct evidence about how the proposed plaintiff felt about his name being disclosed and the likely impact of disclosure upon his intentions and his circumstances. Secondly, there was no evidence in the form of an appropriate expert opinion about the likely impact on the proposed plaintiff’s mental health of the disclosure of his name in the proposed proceeding.[1] Following a short adjournment, each of these matters has now been addressed by two further affidavits.
[1]My reservations were the same as those entertained by Kyrou J in ESB v State of Victoria [2010] VSC 479, [11].
The proposed plaintiff swears that:
I am fearful, if my name is publicised and if I am not granted asylum and am forced to return to Iran, that the Iranian security forces will take severe action against me, that they will persecute me and that my life may even be in danger.
As at the time of affirming this my affidavit, I have not informed my family, who still reside in Tehran of my injuries. I am especially concerned that if my name is publicised and my family become aware of what has occurred to me, it would have an adverse effect on my mother’s health. I am also concerned that, should my name be publicised, the Iranian security forces will take adverse action against my family, including threats, harassment and persecution and I would be fearful for their lives.
On the basis of these fears, I would be reluctant to commence the proposed proceeding if my name was disclosed on account of the impact it would have on both myself and my family in Iran.
Following the incident, the plaintiff was transferred to the Villawood Immigration Detention Centre in Sydney and he was psychologically assessed by Ms Larissa Zilenkov, a registered psychologist and a clinician at the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors. Ms Zilenkov has more than 10 years’ experience in working with refugees and asylum seekers and she assessed the proposed plaintiff on two occasions in May 2014. On this application I have taken into account the history taken from the proposed plaintiff by Ms Zilenkov that I will not repeat. However, I am satisfied that this history supports the fears that the proposed plaintiff has deposed to.
Ms Zilenkov concluded that:
[The proposed plaintiff’s] clinical presentation and reported psychological symptoms are consistent with the account he has provided as having suffered from trauma related to the gross violation of his human rights. The persecution experienced by [the proposed plaintiff] in Iran, including his arrest, imprisonment and torture, has resulted in psychological and physical suffering and an extensive symptomatology characterised by intrusive memories of traumatic events, avoidance and restriction of affect, physiological hyperarousal and depression.
[The proposed plaintiff] experienced severe traumatic events after fleeing persecution in Iran and being detained in the Manus Island detention facility. These experiences have had a dramatically negative impact on his psychological health, and have further exacerbated his existing symptoms. This continues to be further compounded due to his continued detention in an environment that he perceives as punitive and unsafe. [The proposed plaintiff] is experiencing difficulties in coping with the symptoms that distress him. In the recent weeks, he also experienced suicidal ideation and expressed an urgent need for assistance.
Ms Zilenkov provisionally diagnosed the proposed plaintiff as suffering from post-traumatic stress disorder, anxiety and depression, and suicidal ideation. She recommended psychiatric assessment due to the complexity of his clinical picture, the severity of his symptoms and his reported suicidal ideation. She described his psychological health as being at risk of further deterioration.
It is not in doubt that the court has an inherent jurisdiction to control its procedures and processes. Until recently, the court’s power to close its proceedings by suppression orders and closed court orders was regulated by ss 18 and 19 of the Supreme Court Act 1986. Those provisions have now been replaced by the Open Courts Act 2013. However, that Act does not limit or otherwise affect a court making an order that conceals the identity of a person by restricting the way the person is referred to in open court, or prohibiting or restricting access to the court file.[2]
[2]See Open Courts Act 2013 s 7(d).
The Open Courts Act recognises that a pseudonym order differs from other restrictions on open justice, such as suppression orders and closed courts orders. When a proceeding suppression order is made under the Open Courts Act[3], it is necessary to comply with Part 3 of the Act. The order that I propose to make will not constitute a proceeding suppression order. There will be no effect on the public nature of the proceedings and the ability of the media to fully report on proceedings will only be restricted on the issue of the identity of the plaintiff.[4] The order will not directly restrain conduct by publication, although a potential liability in contempt may arise on breach of the order,[5] but no need arises for media proprietors to be heard in respect of either the making or the revocation of the order. My order will be subject to any further order.
[3]See Open Courts Act 2013 s 17.
[4]See the comments in X v Sydney Children’s Hospitals Speciality Network [2011] NSWSC 1272, [15] and Witness v Marsden & Anor (2000) 49 NSWLR 429.
[5]AAA v BBB (Unreported, Supreme Court of Victoria, Ashley J, 26 August 1994), 6-7; R v Savvas, Stevens & Peisley (1989) 43 A Crim R 331; Attorney-General for NSW v Mayas Pty Ltd (1988) 14 NSWLR 342, 355.
At common law, the power to make pseudonym orders is well established.[6] One category of case[7] in which suppression, closed court and pseudonym orders are generally made to prevent prejudice to the administration of justice are those where it is desirable to protect the safety of persons who are to be litigants or witnesses in those proceedings.[8] In BK v ADB,[9] Nettle J accepted that pseudonym orders may be made in -
a case where disclosure of the identity of the plaintiffs might be sufficient to deflect the plaintiffs from prosecuting their case; which is to say they might reasonably be deterred from bringing proceedings unless public disclosure of their identities could be prevented.
[6]Witness v Marsden & Anor (2000) 49 NSWLR 429; R v Smith (1996) 86 A Crim R 308; Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47; John Fairfax Group Pty Ltd (receivers and managers apptd) & Anor v Local Court of NSW & Ors (1991) 26 NSWLR 131.
[7]The other standard categories of cases concern national security, police informers and undercover police operatives, and in blackmail, extortion, sexual servitude and slavery cases.
[8]XG v Medical Practitioners Board of Victoria [2010] VSC 79; The Age Co Ltd & Ors v Magistrates’ Court of Victoria & Ors [2004] VSC 10; Victorian Lawyers RPA Ltd v ‘X’ [2001] VSC 432; Witness v Marsden & Anor (2000) 49 NSWLR 429; R v Savvas, Stevens & Peisley (1989) 43 A Crim R 331.
[9][2003] VSC 129, [10].
At common law, pseudonym orders in particular have been made in the following categories of cases:
(a)when the plaintiff would reasonably be deterred from bringing proceedings without a pseudonym order;[10]
(b)when the defendant would reasonably be deterred from defending proceedings without a pseudonym order;
(c)cases involving sexual offences; and
(d)cases involving children.
[10]See also ANN v ABC & XYZ (No 1) [2006] VSC 348, A v Peters [2011] VSC 478, National Australia Bank Ltd v KRDV (2012) 292 ALR 639, ABB (by her litigation guardian ABC) v D1 [2013] VSC 81, TTT & JJJ v State of Victoria [2013] VSC 162.
It is convenient to refer to the succinct distillation of principle by J Forrest J in ABC v D1 & Ors Ex Parte The Herald Sun & Weekly Times Ltd:[11]
[11][2007] VSC 480. This distillation of the applicable principles has been followed or cited by a number of judges of the trial division of this court.
First, that the principal rule is that judicial hearings should take place in open court: publicly and in open view, with no restriction on reporting. This is a fundamental precept underpinning the administration of justice.
Second, that in certain circumstances the administration of justice requires a qualification of the general rule. There will be circumstances where modifications of the general rule are necessarily made to ensure that the administration of justice is not frustrated. These exceptions are many and varied and cannot be prescriptively identified.
Third, that the test to be applied by the court in making a pseudonym order is, to use the words of the statute, whether it is necessary to do so in order not to prejudice the administration of justice.
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.
Fifth, that in certain circumstances, particularly those involving sexual assaults, it may be appropriate not only to suppress the name of the plaintiff but also to suppress the name of the defendant or defendants.
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.
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.[12]
[12]Ibid, [65]-[71].
Finally, that genuinely held fears of psychological harm upon disclosure of identity will be a relevant factor for the court’s consideration is also evident from the cases. In TTT and JJJ v State of Victoria,[13] Cavanough J stated:
Even where an applicant for a pseudonym order cites a fear of psychological harm, the success of the application will not always depend on establishing objectively that disclosure of the applicant’s identity would or might in fact cause the applicant psychological harm. Of course, if such a thing were established, it might provide a good independent ground for a pseudonym order. Further or alternatively, it might confirm the reasonableness of the fear expressed by or on behalf of the applicant. However, if the court is satisfied that a fear of this kind is actually and reasonably held, and that the fear might reasonably deter the applicant from proceeding to invoke the jurisdiction of the court, a pseudonym order might be warranted on this basis alone. (Citations omitted)
[13][2013] VSC 162, [18].
I have carefully considered the fundamental principle of open justice[14] and the countervailing considerations put on behalf of the applicant that favour making the pseudonym order. I am satisfied on each ground advanced by the proposed plaintiff that public disclosure of his identity would prejudice the administration of justice for the following reasons:
[14]See generally Hogan v Hinch [2011] HCA 4, [20]-[27].
(a)The proposed plaintiff has stated his reluctance to proceed with the proposed action if his name must be disclosed.
(b)It is unusual that a person seeking asylum in Australia under the provisions of the Migration Act 1958 seeks to bring a claim in a State court for damages for tortious conduct. Such persons usually litigate in the Federal Court. There is a general practice in the Federal Court to refer to persons seeking asylum by a pseudonym. That practice appears to be based upon the recognition in the Migration Act 1958 of the special concerns faced by refugees if their identities are published in the course of judicial process.[15] The provisions of that Act do not by their terms extend to proceedings in this court. Nevertheless, recognition by the Commonwealth Parliament that it is desirable to minimise the risk that flows from publication of the identity of asylum seekers who have applied for protection in Australia both personally and in respect of their family and colleagues overseas, reinforces the broad discretionary considerations that I have already referred to.
[15]See for example Migration Act 1958 (Cth) ss 336E(1), 91X(2), 431(2) s 501K(2).
(c)The report from the psychologist persuades me that there is a real risk of the proposed plaintiff suffering psychological harm as a result of the publication of his name. The proposed plaintiff has a number of fears of things that may occur were his name to be published including:
(i)adverse action that might be taken against him by Iranian security forces were he to be later forced to return to Iran;
(ii)adverse action that might be taken against his family, who reside in Iran by Iranian security forces;
(iii)that publication of his name could cause his life, or his family’s lives, to be placed in danger; and
(iv)that publication of his name would cause his family great distress, and the proposed plaintiff fears that it could have an adverse effect on his mother’s health.
(d)It is possible that this proceeding may attract significant media attention rendering it more probable that the identity and claims of the proposed plaintiff would come to the attention of Iranian security forces and the proposed plaintiff’s family in Iran.
(e)The proposed plaintiff is currently suffering from a number of psychological conditions including post-traumatic stress disorder, anxiety and depression. He reports suicidal ideations. These conditions are linked and/or exacerbated by fears that he is currently experiencing due to his ongoing detention at the Villawood Immigration Detention Centre. I presume that he will remain at that detention centre during the course of this proceeding.
(f)I infer from Ms Zilenkov’s report that the proposed plaintiff is in a highly vulnerable psychological condition and deterioration in his condition could have significant implications for his ongoing health. He is, in my view, entitled to pursue a claim for damages without undertaking a significant risk that his health will substantially deteriorate to the extent that he can be protected by a pseudonym order.
(g)Finally, a pseudonym order will not preclude media reporting of the proceeding. Directions hearing and the trial itself will be conducted in open court. The extent of interference with the principles of open justice that is likely to be occasioned by this order is minimal and I am satisfied that the proper requirements for the administration of justice warrant the making of the order.
Accordingly, I have ordered that –
1.In this proceeding:
(a)the plaintiff only be referred to by the pseudonym ‘RN’; and,
(b)all documents filed in this case only refer to the plaintiff as ‘RN’.
2.The plaintiff’s affidavit sworn 17 June 2014 and Exhibit “JSM-1” to the affidavit of Jane Sophia McDermott sworn 18 June 2014 are to remain confidential and be placed on the Court file in a sealed envelope that is not to be opened nor its contents revealed to any person except by order of a judge.
3.An authenticated copy of this order shall be served on the defendants with the writ.
4.The costs of this application are the plaintiff’s costs in the cause.
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