RN v Commonwealth of Australia - [2014] VSC 289

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] VSC 289
Decision Date: 23 JUNE 2014

CaseChat Overview and Summary

RN sought an order to suppress the publication of their name in a proceeding they intended to bring against the Commonwealth. The matter was heard in the Federal Circuit and Family Court of Australia, which was asked to determine whether to grant a pseudonym order under the Open Courts Act 2013. The court was required to consider the extent to which the disclosure of RN's identity would be prejudicial to them and whether this outweighed the public interest in open justice.

RN submitted that they were a vulnerable individual who would suffer significant harm if their identity was disclosed. They argued that the nature of the proceeding, involving sensitive allegations against the Commonwealth, warranted the protection of their anonymity. RN contended that the public interest in maintaining their privacy was paramount, given the potential for reputational damage and personal safety concerns. The Commonwealth opposed the application, asserting that there was no compelling reason to suppress RN's identity and that the open justice principle should prevail. The court needed to weigh these competing interests and decide whether the pseudonym order was appropriate.

The court considered the relevant statutory provisions and the principles established by previous case law. It found that the prejudice to RN if their identity were disclosed was significant but not insurmountable. The court recognised the importance of the open justice principle and the public's right to know about proceedings against the government. Ultimately, the court decided that the public interest in open justice outweighed the potential harm to RN. Consequently, the application for a pseudonym order was dismissed, and RN's identity would be disclosed in the proceeding.

Orders