Secretary, Department of Justice and Regulation v Zhong (No 2)
[2017] VSCA 19
•17 February 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2016 0061
| SECRETARY, DEPARTMENT OF JUSTICE AND REGULATION | Applicant |
| V | |
| ZHANYU ZHONG [No 2] | Respondent |
S APCI 2016 0062
| TAXI SERVICES COMMISSION | Applicant |
| V | |
| ZHANYU ZHONG [No 2] | Respondent |
RULING
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| JUDGES: | SANTAMARIA, FERGUSON and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 17 February 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 19 |
COURTS – Anonymisation – Respondent sought to have name anonymised in published reasons and restriction of access to court file – Pseudonym used in previous proceedings – Applicants did not oppose order – Pseudonym order part of exercise of Court’s inherent jurisdiction – Application did not fall naturally into established categories for which order commonly made – Primary question whether order necessary to avoid prejudicing interests of justice – Court not bound to make pseudonym order simply because of earlier orders – No proper basis for pseudonym order – Mere embarrassment, distress or invasion of privacy insufficient to warrant making of pseudonym order – ABC v D1; Ex parte The Herald & Weekly Times Limited [2007] VSC 480 referred to.
| APPEARANCES: | Counsel | Solicitors |
No appearances
SANTAMARIA JA
FERGUSON JA
MCLEISH JA:
When the applications for leave to appeal in these proceedings were listed for hearing, the name of the respondent was published in the daily list. His name appears on all court documents filed in these proceedings. At the beginning of the hearing, the respondent’s counsel made an application for the anonymisation of the respondent’s name in any reasons published by this Court. A pseudonym had been used for his name in the proceedings in the Victorian Civil and Administrative Tribunal and in the Trial Division of the Court. Following the hearing of the application for leave to appeal, the parties have filed written submissions addressing whether a pseudonym order should be made in this Court. The applicants’ submissions were prepared and filed in accordance with their duty to the Court as model litigants.
The respondent’s submissions make clear that he seeks an order in each proceeding to the following effect:
1.The respondent be referred to in any subsequent Court documents in this proceeding by the pseudonym [insert pseudonym].
2.Subject to further order, the Prothonotary treat the Court file in this proceeding and each document in it as confidential and not produce them or any of them for inspection by any person not a party to the proceeding without further order.
The Open Courts Act 2013 concerns suppression and closed court orders. However, as both John Dixon J and Bell J have observed, and the respondents submitted there is a difference between a pseudonym order and a suppression order.[1] A pseudonym order de-identifies a party or witness but does not ‘prohibit or restrict the publication or other disclosure of information in connection with the proceeding.’[2] The Open Courts Act is not concerned with orders concealing identity, nor with orders prohibiting or restricting access to court files.[3] Consequently, that Act does not govern whether the orders sought by the respondent should be made in the present case. Rather, the Court must consider whether it should make the orders in the exercise of its inherent jurisdiction.
[1]Hunter v Australian Football League [2015] VSC 112 [4]–[6] (John Dixon J); ABC-1 and ABC-2 v Ring and Ring [2014] VSC 5 [6]–[16] (Bell J).
[2]Open Courts Act s 3 (definition of ‘suppression order’) and see Open Courts Act s 17.
[3]Ibid s 7.
In ABC v D1; Ex parte The Herald & Weekly Times Limited,[4] J Forrest J reviewed the authorities and distilled from them the principles concerning pseudonym orders as follows:
[4][2007] VSC 480 (‘ABC v Herald & Weekly Times’).
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 … 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.[5]
[5]Ibid [65]–[71] (emphasis in original).
It should be added that specific provision is made in the Judicial Proceedings Reports Act 1958 with respect to non-publication of various matters in certain proceedings. The operation of that legislation may bear upon the making of a pseudonym order, but it has no application to the present case.
The respondent accepts that his case does not naturally fall into one of the established categories in which a pseudonym order is commonly made. However, he notes that those categories are not closed, the primary question being whether it is necessary to avoid prejudicing the administration of justice. The respondent submits that as pseudonym orders were made in the Tribunal and the Trial Division (for both de-identification of his name and restrictions on inspection of the Court and Tribunal files), pseudonym orders should now be made in the form sought. He contends that this is necessary to preserve the integrity and justice of the existing Court and Tribunal orders. Whilst accepting that this Court is not bound to make a pseudonym order simply because of the earlier orders, he submits that the appeal proceedings could not be divorced from the previous proceedings. So his argument runs, he has the benefit of the existing orders and that should not be disturbed. Rather, the status quo should be preserved to prevent prejudicing the existing orders and to avoid inconsistency. Additionally, he points to the lack of opposition by the applicants to the making of the order, other cases in this Court when the identity of a party has been protected by a pseudonym, and the fact that the hearing was conducted in open court and may still be reported.
The applicants do not oppose or consent to the making of the orders sought. However, as noted above, they have filed written submissions to assist the Court. The applicants say that the respondent has failed to articulate the nature and breadth of the alleged prejudice to him or the administration of justice if the orders are not made. They also submit that maintaining the status quo is not a basis for making the orders.
In our view, the respondent has not established a proper basis for the making of the orders that he seeks. We do not know upon what evidence and in what circumstances the orders were made in the Tribunal and the Trial Division. We have no evidence before us as to whether the circumstances that gave rise to the making of the orders and the need for them at the time that they were made persists. Against that background, it does not seem to us that the administration of justice requires a pseudonym order to be made now simply because there is an historical pseudonym order in place in related proceedings. Nor is maintaining the status quo a sufficient reason to make the pseudonym orders. Rather, there has to be a proper foundation which establishes that if the orders are not made, the administration of justice will be prejudiced. The existing orders of themselves do not establish a foundation; although some documents reproduced from the Tribunal or Trial Division files, and the applicant’s name, will become publicly available if no corresponding orders are made in this Court, that does not prejudice the administration of justice by undermining the existing orders. It merely reflects the operation and outcome of the appeal process.[6] The existing orders continue to operate on their own terms, subject always to that process.
[6]See, similarly, Kennon v Spry (2008) 238 CLR 366, a decision of the High Court employing the names of the parties, on appeal from a Family Court of Australia decision that was entitled (and the reasons for which were written) using pseudonyms: Stephens v Stephens (2007) 38 Fam LR 149.
The respondent has not filed any evidence as to considerations affecting him which might be taken into account by this Court. Whilst the Court may infer that he may be embarrassed by the disclosure of his criminal record, mere embarrassment, distress or invasion of privacy is insufficient to warrant the making of a pseudonym order.[7] The respondent has not, for example, suggested that he would have been deterred from defending the application for leave to appeal if his name were not
de-identified. Indeed, he could not make such a claim in circumstances where the orders were not sought until long after he had filed court documents (with his name included on them) and at a time when no application had been filed, let alone orders made, restricting access to the Court file.
[7]See, for eg, ABC v Herald & Weekly Times [2007] VSC 480 [42]–[43] and the cases cited in those paragraphs.
As to the other matters relied upon by the respondent, first, it is for the Court to determine whether the orders should be made. The fact that the applicants do not oppose or consent to the application is of no moment.
Second, each case must be determined on its own facts. Little, if anything, can be taken from the fact that pseudonym orders have been made in other cases. In any event we would observe that in Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY[8] and Secretary, Department of Justice v XQH[9] the pseudonyms were used in place of the real names of persons who had been convicted of sexual offences. In those cases, pseudonym orders may have been necessary to protect the identity of the victims. The final case relied upon by the respondent is Director of Public Transport v XFJ.[10]In that case, XFJ had killed his wife. He was found not guilty of murder by reason of insanity. The Court stated that this meant that he was neither legally nor morally responsible for the death of his wife. Those facts are in contrast to the present case where the respondent was convicted of inciting the murder of his ex-wife.
[8][2012] VSCA 143.
[9][2012] VSCA 72.
[10][2011] VSCA 302.
Finally, given our views about each of the other matters raised by the respondent, the fact that the hearing was conducted in open court and may still be reported is not influential.
It follows that the respondent’s application should be refused.
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