Stewart v Good Shepherd Australia New Zealand

[2023] VSC 351

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S ECI 2023 00225

CARINA STEWART	Plaintiff
v
GOOD SHEPHERD AUSTRALIA NEW ZEALAND (ACN 135 641 217) & ANOR (according to the attached schedule)	Defendants

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 June 2023
DATE OF RULING:	23 June 2023
CASE MAY BE CITED AS:	Stewart v Good Shepherd Australia New Zealand
MEDIUM NEUTRAL CITATION:	[2023] VSC 351 (First Revision 26 June 2023)

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APPLICATION – Suppression orders – Whether order should be made preventing publication or disclosure of crisis accommodation address – No evidence to show publication of names of employees and service providers will lead to identification of address – Open Courts Act 2013 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance	N/A
For the First Defendant	Ms G J Cooper	FCW Lawyers
For the Second Defendant	Mr J Teng	Department of Families, Fairness and Housing

HIS HONOUR:

1. In September 2021, the plaintiff, as a victim of domestic violence, was provided with crisis accommodation by the first defendant at a house owned by the second defendant. According to the first defendant, the crisis accommodation was initially intended to last 6 to 8 weeks but has continued as a result of the COVID-19 pandemic and the plaintiff’s ‘refusal to accept alternative accommodation options’.  The plaintiff has commenced a proceeding in which she alleges that she has been ‘threatened’ by the first defendant who has ‘ordered’ her to leave the property, and that her complaints have gone unheeded by the second defendant.  The plaintiff is not legally represented. She seeks, according to a statement of claim, ‘compensation damages/long-term housing & opportunity to rebuild one’s life’.

1. The first defendant has applied by an amended summons for suppression orders pursuant to s 18(1)(c) of the Open Courts Act 2013.  Its solicitor has deposed that the first defendant provides crisis accommodation to victim survivors of domestic abuse at various locations across Victoria, and that the locations are ‘necessarily kept extremely secret and are not disclosed to any person except clients, and are disclosed on terms requiring that the clients keep such locations confidential’ and that it ‘has deep concerns about the safety of its current and future clients should any information be disclosed about the Services provided and locations of any such Services’.

1. The order it seeks in its amended summons is that:

…the following information contained in any documents filed in this proceeding, or otherwise derived from this proceeding, must not be published or disclosed to any person other than the parties and their legal representatives until further order:

a.The address of any crisis or refuge accommodation centres operated by the First Defendant;

b.The names of any employees and/or service providers of the First Defendant;

c.The addresses at which the First Defendant provides its services; and

d.Any information that could lead to the identification of the matters referred to in paragraphs a to c above.

1. The Court has notified the relevant news media organisations of the application in accordance with s 11 of the Open Courts Act 2013.  None appeared to oppose the application.

1. This morning, the plaintiff emailed my chambers advising that she opposed the application and was applying for an adjournment on the grounds that she had a medical emergency.  She did not provide any medical material that established that she was unable to appear.  She has not filed any affidavit material setting out facts that she contends would make the suppression order inappropriate.  I cannot myself identify any reason for which she would be disadvantaged in the prosecution of her claim by the suppression orders.  In the circumstances, I did not adjourn the application but heard it in the plaintiff’s absence.  However, I am conscious that I have not heard argument from the plaintiff.  Accordingly, the orders that I make will note that she opposed the grant of the order and was not present when the orders were made, and will give her liberty to apply to the Court to have the orders varied or revoked if she so wishes.  I raised the prospect of dealing with the application in this way with counsel for the defendants, and neither objected to that course.

1. Section 17(b) of the Open Courts Act 2013 empowers the Court to prohibit or restrict the disclosure by publication or otherwise of any information derived from a proceeding.  In my view, it is necessary to protect the safety of persons residing at crisis accommodation that I make an order prohibiting the disclosure by publication or otherwise of the address of the crisis accommodation at which the plaintiff is currently residing and the addresses of any other crisis accommodation provided by the first defendant, or information that could lead to the identification of those addresses.[1]  I accept that the disclosure and publication of the address of crisis accommodation, or the identification of those addresses, could put at risk persons fleeing domestic violence who reside at that accommodation.  I am satisfied that such an order, in the circumstances of this case, is necessary to override or displace the principle of open justice and the free communication and disclosure of information.[2] 

   [1]Open Courts Act 2013 (Vic) s 18(1)(c).

   [2]Ibid s 4(2).

1. In my view, however, para (b) of the form of order sought by the first defendant is not justified.  I’m not satisfied, having regard to the primacy of the principle of open justice in the free communication and disclosure of information,[3] that it is necessary to make an order that has the effect of prohibiting the publication or disclosure of the names of any employees or service providers of the first defendant.  It has not been established, on the evidence, that the publication of the names of any employees or service providers of the first defendant will lead to the identification of the addresses at which refuge or crisis accommodation is provided or will put the safety of those employees or service providers at risk.

   [3]Ibid s 4(1).

1. For the above reasons, I will order, pursuant to ss 17(b) and 18(1)(c) of the Open Courts Act 2013, that:

The following information contained in any documents filed in this proceeding, or otherwise derived from this proceeding, must not be published or disclosed to any person other than the parties and their legal representatives until further order:

a.The address of any crisis or refuge accommodation centres operated by the First Defendant;

b.The addresses at which the First Defendant provides its services; and

c.Any information that could lead to the identification of the matters referred to in paragraphs (a) and (b) above.

1. Section 12 of the Open Courts Act 2013 requires me to identify the period for which a suppression order will operate. In circumstances where the order is expressed to operate ‘until further order’, I’m obliged to specify a period not exceeding five years from the date of the order at the end of which the order expires unless sooner revoked.[4]  In assessing that period, I’m obliged to ensure that the suppression order operates for no longer than is reasonably necessary to achieve the purpose for which it is made.[5]  In my view, bearing in mind that there is a likelihood that crisis or refuge accommodation will continue to be provided for the foreseeable future at the same addresses, and given that there is no real public interest in the identification of those addresses, it’s appropriate that the suppression order operate for the full five year period.  I will accordingly make another order to that effect.

   [4]Ibid s 12(3).

   [5]Ibid s 12(4).

1. These reasons are provided in accordance with the obligation contained in s 14A of the Open Courts Act 2013.

SCHEDULE OF PARTIES

S ECI 2023 00225

CARINA STEWART	Plaintiff
-and-
GOOD SHEPHERD AUSTRALIA NEW ZEALAND (ACN 135 641 217)	First Defendant
HOMES VICTORIA	Second Defendant