TTT and JJJ v State of Victoria
[2013] VSC 162
•25 March 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. S CI 2013 1354
IN THE MATTER OF
| “TTT” (a person under a disability who sues by her litigation guardian “AAA”) | Proposed Plaintiff |
| v | |
| STATE OF VICTORIA | Proposed Defendant |
AND
No. S CI 2013 1356
IN THE MATTER of
| “JJJ” (a person under a disability who sues by his litigation guardian “AAA”) | Proposed Plaintiff |
| v | |
| STATE OF VICTORIA | Proposed Defendant |
---
JUDGE: | CAVANOUGH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 March 2013 | |
DATE OF JUDGMENT: | Orders made 25 March 2013; reasons published 11 April 2013 | |
CASE MAY BE CITED AS: | TTT & JJJ v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 162 | |
---
PRACTICE AND PROCEDURE – Applications by minors through litigation guardian for leave to commence common law proceedings for damages under pseudonyms – Principles – Claims that defendant negligently failed to protect child siblings from family violence including sexual assault – Applicants might reasonably be deterred from bringing claims without protection of identity – Observations concerning identification of child victims of family violence – Applications granted – Supreme Court Act 1986 ss 18(1)(c), 19(b); Judicial Proceedings Reports Act 1958, s 4.
---
APPEARANCES: | Counsel | Solicitors |
| For the Proposed Plaintiffs | Ms B Knoester | Slater & Gordon |
| For the Proposed Defendant | No appearance |
HIS HONOUR:
At the end of a hearing in the Practice Court on 25 March 2013 in relation to these two separate but related applications, I made orders which in substance enabled each of the two applicants, respectively, to commence under a pseudonym (and to thus continue) a common law proceeding against the State of Victoria for damages. I indicated that I would publish written reasons in due course. These are my reasons.
The applicant TTT is the sister of the applicant JJJ. TTT is 11 years of age. Her brother JJJ is 12 years of age. Each applicant being a minor, it is proposed that their grandmother AAA act as litigation guardian in each proceeding. In short, the applicants propose to allege that certain agencies of the State of Victoria, including the former Department of Human Services, negligently failed to protect the applicants from physical and psychological harm suffered by them as a consequence of family violence.
Two affidavits of the grandmother have been filed - one for each application.
Affidavits by the solicitor who is acting for both applicants have also been filed. The exhibits include a proposed statement of claim in each case.
The applications invoke the inherent jurisdiction of the Court to conduct its own proceedings in the way best calculated to advance the interests of justice, and they also invoke s 18(1)(c) of the Supreme Court Act 1986 (‘the Act’) which provides that, in the circumstances mentioned in s 19 of the Act, the Court may make an order prohibiting the publication of a report of the whole or any part of any information derived from a proceeding. In this latter regard the applicants rely on s 19(b) of the Act, which provides that the Court may make an order under s 18 if in its opinion it is necessary to do so in order not to prejudice the administration of justice.[1]
[1]Sections 18 and 19 of the Supreme Court Act 1986 have not displaced the inherent power of the Court to protect its own process: BK v ADB [2003] VSC 129 (Nettle J) [6]; News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248 [40] (Warren CJ and Byrne J), [117] (Buchanan J).
The principles relating to applications to restrict publication by the use of pseudonym orders have been discussed in many cases.[2]
[2]See, for example, BK v ADB [2003] VSC 129 (Nettle J); ANN v ABC & XYZ (No 1) [2006] VSC 348 (Hollingworth J); ABC v D 1 [2007] VSC 480 (J Forrest J); AX v Stern [2008] VSC 400 (Warren CJ); ESB v Victoria [2010] VSC 479 (Kyrou J); PPP v QQQas the representative of the Estate of RRR (deceased) [2011] VSC 186 (Dixon J) especially at [31]-[34]; AA v BB [2013] VSC 120 (Bell J) especially at [166]-[194].
A departure from the fundamental principle that justice in the courts should be administered in public is exceptional, but, as was said by Nettle J (as his Honour then was) in BK v ADB[3], such an exception may be found in a case where disclosure of the identity of a proposed plaintiff might be sufficient to deflect that person from prosecuting his or her case – that is to say, where the proposed plaintiff might reasonably be deterred from bringing proceedings unless public disclosure of his or her identity could be prevented. Similar considerations may apply where, as here, the proposed plaintiffs are persons under a disability and the decision falls to be made by their litigation guardian.
[3][2003] VSC 129 [10].
It is now well recognised that cases involving sexual assaults regularly, and appropriately, attract pseudonym orders.[4] The present case involves allegations that the injuries suffered by JJJ included injuries to his genital area.
[4]PPP v QQQ as the representative of the Estate of RRR (deceased) [2011] VSC 186 (Dixon J) [33].
It appears from the affidavits of the children’s grandmother, AAA, that from a very young age TTT and JJJ lived within an environment of domestic violence involving their mother and father. In 2007 the mother commenced a new de facto relationship with a certain male person. He became the children’s de facto stepfather. The grandmother deposes that between approximately June 2007 and October 2008 both children were subjected to physical and psychological abuses at the hands of their de facto stepfather. She says that these abuses occurred on an almost daily basis; that they caused TTT to suffer “multiple physical injuries (including fractures) and severe psychological and emotional problems for which she required professional counselling and care”; and that they caused JJJ to suffer “multiple physical injuries (including fractures), skull lacerations, penile trauma and severe psychological and emotional problems for which he required professional counselling and care”. There is medical and other independent evidence to support the grandmother’s affidavits in these respects.
The grandmother further deposes that in late 2008 the de facto stepfather was the subject of a criminal prosecution in the County Court in connection with the alleged assaults on TTT and her brother. The charges included the alleged inflicting of the abovementioned injuries to JJJ’s genital area. The evidence before me indicates that during the County Court proceedings there was considerable media interest in the case and in particular with respect to the injuries suffered by the children. The grandmother deposes that, at the time, she and others were able to reach an understanding with the media interests that any publicity about the case would not involve the naming of the children or the publication of their faces. A contemporaneous report in the Melbourne Herald Sun indicates that the de facto stepfather pleaded guilty to 10 charges ranging from intentionally causing serious injury to threatening to inflict serious injury and that a plea on his behalf was made in September 2010. The same newspaper report states that the man “cannot be named for legal reasons”. Nor does the report name or otherwise identify the children. It may be that in addition to whatever arrangement was made with the family the media perceived that s 4 of the Judicial Proceedings Reports Act 1958 (Vic) (which prohibits the publication of material that might identify an alleged victim of an alleged sexual offence) was applicable. On the other hand, the grandmother deposes that the media did publish cropped pictures depicting some of the physical injuries suffered by the children. She says that TTT became aware of this publication and became distraught and inconsolably upset, particularly by the television coverage. Further, according to the grandmother, TTT had been under medical care at the time and the events of the publication caused a serious regression in the progress of her emotional wellbeing.
The affidavit of the grandmother in the matter of TTT continues as follows:
7Since these events stopped I and others have been devoted to looking after the health and wellbeing of [TTT] and her brother by attempting to normalise their life. Both [TTT] and her brother are attending school and are endeavouring to live a normal life free from the traumas of their past. They are at an age when any publicity generated by civil proceedings would, I believe, lead to much distress and embarrassment particularly since they live in a local community where curiosity can become invasive and pervasive. This possibility would be compounded in my view by the fact that [TTT] and her brother both attend local schools and any awareness of their histories may result in them being ridiculed or bullied within their peer group. We have, where possible, attempted to keep the past history private on the basis that it ought not be anyone else’s business and I believe that any publication of this history would be detrimental to them at a time when they are approaching their adolescence.
8.While I am greatly concerned about the immediate adverse effects that may arise from publication of [TTT’s] identity in these proceedings I am also concerned that her future privacy, when she becomes a young woman, cannot be protected because of the immediate and permanent access to past media reports available on the internet. Publication of details of her history in these proceedings will be forever available to anyone who chooses to enter her name in any internet search engine. I do not believe that this would be in anyone’s interest.
The grandmother makes corresponding statements and comments in relation to JJJ.
The children’s solicitor deposes that his instructions from the grandmother (the proposed litigation guardian) are to proceed with claims against the State of Victoria only if the identities of TTT and JJJ are protected by appropriate orders. The solicitor also says that the grandmother is adamant that she will not further expose the children to the public scrutiny that media publicity would bring; that the grandmother has instructed him that it would be difficult for her to decide not to proceed; but that, unless anonymity can be achieved, she would have to take that decision in the interests of the children’s well being and mental health and based on her appreciation and understanding of the situation as a registered Victorian school teacher.
The material before the Court is quite detailed. It goes well beyond what J Forrest J referred to in ABC v DI as a “mere belief on the part of a party that the order is necessary”.[5] Of course it is true that, on this ex parte application, there is no-one to contradict or question the assertions of the grandmother and the solicitor. However it is clear from contemporaneous medical reports and official records exhibited to the affidavits and from the report in the Herald Sun of the County Court criminal proceedings that the children were indeed subjected to an appalling history of domestic violence, especially in 2007-2008, as described by their grandmother. Moreover, in the latter half of 2008 a forensic physician employed at a major hospital carried out extensive medical assessments, examinations and investigations in relation to the children and in December 2008 he reported in writing to the Victoria Police and to the Department of Human Services that, due to the levels of trauma experienced by the children, they should both be referred for psychiatric counselling. In fact, TTT had already been placed under psychiatric care by that time. A report from her treating psychiatrist dated 19 November 2008 diagnosed her with “Adjustment disorder secondary to physical abuse with mixed mild emotional and behavioural disturbance”.
[5][1997] VSC 480 [71].
In addition, it appears that both children received treatment around this time from a particular psychologist. Despite attempts, their solicitor has been unable to obtain a report (or any response at all) from that psychologist. It seems that the psychologist is employed by the proposed defendant, the State of Victoria.
The solicitor has also attempted, so far unsuccessfully, to obtain from the Children’s Court a copy of a known report dated 18 November 2008 prepared for the Children’s Court in relation to both children by another psychologist.
The most recent medical report available is a report relating to JJJ dated 7 November 2010 prepared by a general practitioner who had first seen JJJ on 7 June 2007. After summarising JJJ’s history, the general practitioner observes in his report that JJJ suffered significant physical and emotional abuse from his de facto stepfather for a period of at least 12 months. He concludes by saying that JJJ will “naturally require ongoing support in the form of regular Psychotherapy and a caring environment”; and that it is “difficult to comment on the child’s emotional prognosis as the emotional impact of such events is often life-long”.
The children’s solicitor acknowledges in his affidavits that he has not yet been able to obtain current medical reports addressing the psychological state of either of the children. And it is true that in several cases relating to pseudonym orders the Court has been provided with, and has given weight to, current psychiatric or psychological evidence concerning the feared impact of public identification on the proposed plaintiff. However, I do not think that the absence of similar up-to-date expert evidence in this case is fatal to the application.
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.[6] Further or alternatively, it might confirm the reasonableness of the fear expressed by or on behalf of the applicant.[7] 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.[8]
[6]ABC v DI [2007] VSC 480 (J Forrest J) [68].
[7]BK v ADB [2003] VSC 129 (Nettle J) [13].
[8]See BK v ADB [2003] VSC 129 (Nettle J) [10], [13]-[14]; PPP v QQQ [2011] VSC 186 (Dixon J) [34] (note especially the use of “or” in the first sentence of para [34]).
Notwithstanding the absence of up-to-date psychological evidence, I am satisfied that the grandmother’s fears about the identification of the children are actually and reasonably held, and that those fears might reasonably, and in fact would, deter her from bringing the proposed proceedings in the absence of protective orders. As already mentioned, the solicitor deposes that the grandmother is adamant about her stance. Her fears are entirely understandable. They have a solid basis in fact and experience. They are supported by the existing medical and other evidence before the Court, so far as it goes. Strictly speaking, the grandmother’s opinion as to the likely psychological effect of disclosure of the children’s identity may not amount to admissible expert opinion on that matter. However, that does not mean that she is not in a position to make a reasonable decision about whether or not the proceeding should be commenced without protection of the children’s identity. Indeed her stance strikes me as eminently reasonable.
In any event, as J Forrest J said in ABC v D1[9], in certain cases a court can, in a practical sense, act on its own experience and draw appropriate inferences. Here, in case it matters, I infer on the evidence presently available (and despite the absence of up to date medical evidence) that there is “a real risk of [one or other or both of the children] suffering psychological harm as a result of the publication of [any details that would identify either of them]”.[10] Both of the children are of a tender age. They have suffered greatly in the past. They have needed psychological counselling. Their grandmother has vividly described the adverse reaction of TTT to the limited publicity that occurred in September 2010. That was not so very long ago.
[9][2007] VSC 480 [71]. See also at [62].
[10]Ibid, [68].
The courts have always been alert to protect the interests of children whose affairs come before them, including, often, their interest in privacy.[11] The general protection of children has also been a major concern of the legislature.[12] Some statutory provisions explicitly protect the privacy of children involved in specified court or tribunal proceedings.[13] Surprisingly, however, neither counsel nor I could find a previous case in which an applicant to this Court for a pseudonym order was a minor at the time of the application (as distinct from the time of the alleged injury). On the other hand I note that in the recent case of AA v BB[14], Bell J observed that a non-publication order may be made in proceedings involving “people with a mental illness, wards of the state or children in the parens patriae jurisdiction”. The case had some similarity to the present. It involved a statutory appeal from a decision of the Magistrates’ Court of Victoria to convict and sentence the appellant for contravening an intervention order made under the Family Violence Protection Act 2008. Certain provisions of that Act restricted the publication of reports of proceedings under the Act. Bell J said that those provisions were “directed at protecting the identity of parties, witnesses, children and other persons involved in a proceeding under [the Act]”.[15] His Honour also said that “an important purpose of the Act was ensuring that a victim of family violence would not fear being traumatised by publicity which might reveal their identity”.[16] The provisions of the Act restricting publication were not directly applicable to the appeal to the Supreme Court, which was brought under the Criminal Procedure Act 2009 (Vic). However, his Honour considered that the policy of those provisions was a significant factor in determining whether or not disclosure of the identity of the appellant and of the other family members (including the protected person and a child) should be prohibited by an order under ss 18 and 19 of the Supreme Court Act 1986. Also significant was the policy of similar provisions in the Family Law Act 1975 (Cth). His Honour said:
This case falls into categories in which it is acknowledged that non-publication orders might be made. Unless orders were to be made, people – especially vulnerable women and children – would be deterred from seeking legal protection which they need and to which they are entitled. Others would be discouraged from becoming involved in proceedings. Unless orders were to be made, the subject matter of the proceeding would be destroyed. The subject matter of a family violence proceeding is the protection of the safety and wellbeing of the protected person, children and other family members. It would be destroyed or imperilled by loss of privacy in an appeal. Unless orders were to be made, the privacy protections in the Family Violence Protection Act and the Family Law Act would be undermined or lost. It would prejudice the administration of justice in all of these respects for orders not to be made.[17]
Ultimately his Honour determined that a pseudonym order should be made in the interests of “protecting the identities of the protected person and the child”.[18]
[11]The role of the Court as parens patriae and the Court’s wardship jurisdiction are long-standing examples.
[12]See, eg, Children Youth and Families Act 2005 (Vic), esp s 1(b).
[13]See, eg Children Youth and Families Act 2005, s 523(5) (child parties to proceedings in the Children’s Court) and s 430ZD(6) (child parties to appeals from the Children’s Court); Victims of Crime Assistance Act, s 42(3)(a)(ii) (child victims of crime). See also below.
[14][2013] VSC 120 [182]. Citations omitted.
[15]Ibid [155].
[16]Ibid, loc. cit.
[17][2013] VSC 120 [191].
[18]Ibid [194].
In AX v Stern[19] Warren CJ made an order suppressing the names of the two proposed adult plaintiffs, who wished to sue in respect of allegedly negligent IVF treatment. Her Honour was not persuaded by the feared impact of publicity on the professional lives of the proposed plaintiffs, but was persuaded by the feared impact of publicity on the twin children of the proposed plaintiffs. The children had been born as a result of the IVF treatment. One of them was born with a disability. The concern was that the children themselves and others would come to know the views that had been held by the parents at an earlier stage about possible termination of the pregnancy.
[19][2008] VSC 400.
In Re Hogan; Ex parte West Australian Newspapers,[20] a magistrate had made a non-publication order suppressing the names of several very young children who were said to have been the victims of crime. Two carers at a childcare centre had been charged with assaulting the children by tying their legs together. A newspaper company asserted that the suppression order infringed the principle of open justice. The challenge was dismissed by a Judge of the Supreme Court of Western Australia and, on appeal, by the Court of Appeal. McLure P delivered the leading judgment. Her Honour noted certain provisions of Western Australian statutory law which, to an extent, protected the interests of victims of crime generally and the interests of children involved in litigation generally. Not all of those provisions have Victorian equivalents. However it is worth noting that her Honour said:
Courts in this jurisdiction routinely protect the identities of victims of sexual offences. Moreover, there is a similar strong public interest in protecting the identity of children who are victims of crime.[21]
[20][2009] WASCA 221.
[21][2009] WASCA 221 [41].
I do not suggest that this Court should create a new, non-statutory category of automatic reporting restrictions in relation to child victims of crime or in relation to family violence or children generally.[22] However it seems to me that the cases to which I have referred support the view that the tender age of the proposed plaintiffs in this case is a matter that could legitimately be weighed in the scales in their favour in determining whether or not to make the pseudonym orders sought.
[22]Nor did Bell J so suggest: see AA v BB [2013] VSC 120 [192]. See also In re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593, 604-605, 607-608.
In any event, as already indicated, the allegation that JJJ was sexually assaulted constitutes in its own right a significant factor in favour of making (both of) the pseudonym orders sought.[23]
[23]ABC v DI [2007] VSC 480 [44]; PPP v QQQ [2011] VSC 186 [33].
Finally, I would mention the limited effect of the orders I have made. They may have little or no additional impact at all. To the extent that s 4 of the Judicial Proceedings Reports Act 1958 was applicable to the criminal proceedings in the County Court, it may still operate, in effect, to preclude the publication of any information that would tend to identify JJJ in connection with the alleged sexual assaults. Further, the effects of the orders I have made are not irreversible. The orders contain express provision for applications to be made for orders to remove ongoing protection in relation to the identities of the children.
For these reasons, I was satisfied that the orders made were necessary in order not to prejudice the administration of justice and, indeed, necessary in the interests of justice.
6
8
0