Roe v Howard - [2020] VSC 212

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
PRACTICE COURT

S ECI 2020 01108

SARAH ROE (a pseudonym)	Plaintiff
v
LINDA HOWARD	Defendant

---

JUDGE:	Macaulay J
WHERE HELD:	Melbourne, ex parte
DATE OF HEARING:	5 March 2020
DATE OF JUDGMENT:	11 March 2020
CASE MAY BE CITED AS:	Roe v Howard
MEDIUM NEUTRAL CITATION:	[2020] VSC 212

---

FREEZING ORDER – r 37A.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules) – Interlocutory relief is sought ex parte - Usual undertaking for damages not proffered by the plaintiff – Whether plaintiff should be relieved of the requirement to give the usual undertaking as to damages due to her low financial means - Freezing order not granted but would be granted if usual undertaking as to damages was given.

PSEUDONYM ORDER – Leave to commence proceedings under pseudonym – Plaintiff not to comply with r 5.07(1)(a) of the Rules – Substantive proceeding for recognition of foreign judgment granted in the United States of America – Foreign judgment concerned plaintiff’s forced labour and sexual servitude - Pseudonym orders are appropriate in the interests of justice.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms C Cunliffe	Jones Day
For the Defendant	No appearance

HIS HONOUR:

Sarah Roe (a pseudonym) obtained an award of damages for the sum of USD$3 million in the United States District Court for the Eastern District of Virginia, upheld on appeal to the United States Court of Appeal for the Fourth Circuit (‘the US Judgment’). By Originating Motion filed in this Court, Ms Roe has applied to register the US Judgment in this Court to enable her to enforce it in this jurisdiction. The judgment debtor, Ms Linda Howard, owns real estate in Victoria.

The proceeding is yet to be served upon Ms Howard. Interlocutory relief is sought, ex parte, for two things: an order permitting the proceeding to be commenced without identifying the plaintiff by her real name but by means of a pseudonym and a freezing order to restrain Ms Howard, until further order, from disposing of her assets in the jurisdiction.

Several affidavits have been sworn and filed in support of these applications. Upon reading them I am comfortably satisfied that this is a case in which it is appropriate to permit the plaintiff to commence her proceedings by the use of a pseudonym and to make necessary ancillary orders.[1] Her cause of action against Ms Howard upon which she obtained judgment in the United States was based upon breaches of the Trafficking Victims Protection Act of 2000, for having recruited Ms Roe to provide forced labour, including forced sexual servitude. The details of that sexual servitude are harrowing and degrading. Her proceeding was conducted in the United States by use of a pseudonym. This is the very type of case for which pseudonym orders are appropriate in the interests of justice.
[1]The principles to be applied in the exercise of the discretion are set out in ABC v…

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.

Continue reading Roe v Howard

Details

AGLC: Roe v Howard [2020] VSC 212
Case: [2020] VSC 212
Decision Date: 11 March 2020

CaseChat Overview and Summary

In the matter of Roe v Howard, the plaintiff, Roe, sought an ex parte freezing order against the defendant, Howard, under rule 37A.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). Roe, who had previously been a victim of forced labour and sexual servitude, sought to prevent Howard from disposing of assets that could potentially be used to satisfy a judgment from the United States. Roe also requested leave to commence proceedings under a pseudonym, deviating from rule 5.07(1)(a) of the Rules.

The court was tasked with determining whether Roe should be exempted from providing the usual undertaking as to damages due to her low financial means, and whether a pseudonym order was appropriate in the context of proceedings seeking recognition of a foreign judgment concerning forced labour and sexual servitude. The court assessed the balance between Roe's need for protection and the requirements set out in the Rules.

The court held that while Roe’s circumstances warranted sympathy, the requirement to provide the usual undertaking as to damages could not be waived. However, the court noted that if Roe had provided the usual undertaking, a freezing order would have been granted. Furthermore, the court found that pseudonym orders were appropriate in this case to protect Roe's identity and safety, given the sensitive nature of the proceedings.

The court granted Roe leave to commence proceedings under a pseudonym and made a substantive order for the recognition of the foreign judgment.

Orders