XBA (ex parte)
[2019] VSC 49
•8 February 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2017 02457
| XBA | Plaintiff |
| v | |
| HIS GRACE THE MOST REVEREND DENIS HART, ARCHBISHOP FOR THE DIOCESE OF MELBOURNE as Administrator At Litem for THE ESTATE OF HIS GRACE THE MOST REVEREND DANIEL MANNIX ARCHBISHOP FOR THE ARCHDIOCESE OF MELBOURNE (Deceased) and Ors (according to the attached Schedule) | Defendants |
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JUDGE: | Ierodiaconou As J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 February 2019 |
DATE OF RULING: | 8 February 2019 |
CASE MAY BE CITED AS: | XBA (ex parte) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 49 |
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PRACTICE AND PROCEDURE – Pseudonym order – Application by plaintiff to suppress publication of name in the proceeding – Discretionary considerations – ABC v. D1 & Ors Ex Parte The Herald & Weekly Times Limited [2007] VSC 480 – Secretary, Department of Justice and Regulation v Zhong; Taxi Services Commission v Zhong [2017] VSCA 19 – XYZ v State of Victoria & Anor [2016] VSC 339 – Application considered pursuant to the Court’s inherent jurisdiction to make pseudonym orders.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A Spitzer | Waller Legal |
| For the Defendant |
HER HONOUR:
The plaintiff alleges that he was subject to physical, sexual and emotional abuse by a priest, Father Kevin O’Donnell. The alleged abused occurred between 1978 and 1980 while he was a student at Sacred Heart Primary School. By summons filed on 10 January 2019, the plaintiff seeks an order that he be granted a pseudonym in the proceeding.
The application was made ex parte. The proceeding is yet to be served on the defendants.
For the reasons below, I will make the pseudonym order sought by the plaintiff.
Applicable principles
In ABC v. D1 & Ors Ex Parte The Herald & Weekly Times Limited[1], J Forrest J referred to the open court principle and exceptions to it.
[1][2007] VSC 480.
26.In this country, the principle that proceedings will be conducted publicly and in open view was set out by Gibbs J in Russell v Russell:
“It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted ‘publicly and in open view’. This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for ‘publicity is the authentic hall-mark of judicial as distinct from administrative procedure’. To require a court invariably to sit in closed court is to alter the nature of the court. Of course there are established exceptions to the general rule that judicial proceedings shall be conducted in public; and the category of such exceptions is not closed to the Parliament. The need to maintain secrecy or confidentiality, or the interests of privacy or delicacy, may in some cases be thought to render it desirable for a matter, or part of it, to be held in closed court.”
27.As Gibbs J points out, the exceptions to the general rule arise either by legislative intervention or the inherent power of the Court…
…
32.In addition to the statutory provisions, the Court may, in the application of its inherent powers to ensure that the interests of justice are maintained, make an appropriate order either restricting or prohibiting the reporting of the proceedings or part thereof.
33.The general rule of open justice goes to the very heart of the justice system. It is, however, subject to exceptions as the end aim must be to maintain the interests of justice.[2]
[2][2007] VSC 480.
More recently, the Court of Appeal has referred to the difference between pseudonym orders and suppression orders.[3]
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. 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.’ The Open Courts Act is not concerned with orders concealing identity, nor with orders prohibiting or restricting access to court files. 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.
[3]Secretary, Department of Justice and Regulation v Zhong; Taxi Services Commission v Zhong [2017] VSCA 19 per Santamaria, Ferguson and McLeish JJA [3].
In that decision, the Court of Appeal endorsed the principles concerning pseudonym orders outlined by J Forrest J in ABC v. D1 & Ors Ex Parte The Herald & Weekly Times Limited.[4]
[4][2007] VSC 480 [44].
In ABC v D1; Ex parte The Herald & Weekly Times Limited, J Forrest J reviewed the authorities and distilled from them the principles concerning pseudonym orders as follows:
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.
In XYZ v State of Victoria & Anor[5], T Forrest J observed that the power to make pseudonym orders is well established at common law. T Forrest J stated:
[5][2016] VSC 339.
One category of case in which suppression, closed court and pseudonym orders are generally made to prevent prejudice to the administration of justice are those where it is desirable to protect the safety of persons who are to be litigants or witnesses in those proceedings.
…
At common law, pseudonym orders in particular have been made in the following categories of cases:
(a)when the plaintiff would reasonably be deterred from bringing proceedings without a pseudonym order;
(b)when the defendant would reasonably be deterred from defending proceedings without a pseudonym order;
(c) cases involving sexual offences; and
(d) cases involving children.
…
Finally, that genuinely held fears of psychological harm upon disclosure of identity will be a relevant factor for the court’s consideration is also evident from the cases.[6]
[6][2016] VSC 339 [19], [21].
There needs to be ‘a proper foundation which establishes that if the [pseudonym] orders are not made, the administration of justice will be prejudiced’.[7] Further, ‘mere embarrassment, distress or invasion of privacy is insufficient to warrant the making of a pseudonym order’[8]
[7]Secretary, Department of Justice and Regulation v Zhong; Taxi Services Commission v Zhong [8].
[8]Ibid [9].
Application
This application is considered pursuant to the Court’s inherent jurisdiction to grant pseudonym orders.
Here, the plaintiff relies on the affidavit of his solicitor, Vivian Waller, sworn on 10 January 2019 (‘the Waller affidavit’). It exhibits a report from the plaintiff’s psychologist dated 10 September 2018.[9]
[9]Exhibit ‘VW-1’ to the Waller affidavit.
The psychologist’s report states that the plaintiff:
… was victimised and shamed by the sexual abuse as a child, and he now feels using his name will name him as a victim again. It will be deeply shaming for him…
…
… [the plaintiff] is still experiencing long terms symptoms of the trauma.
The psychologist diagnoses the plaintiff within the clinical range on the Impact of Event Scale – Revised. The plaintiff is suffering from severe stress, moderate anxiety and mild depression according to the Depression, Anxiety and Stress Scale. She states that the Internalised Shame Scale identifies low self-esteem and shame. The psychologist recommends the granting of a pseudonym order.
The Waller affidavit refers to a number of factors which the plaintiff feels will lead to him being re-victimised and exacerbating his psychological injuries, particularly his depression if he is named. This includes, amongst other things, that his parents are unaware of the abuse, remain in the local community, are elderly and are still religious.
This application falls within a well-known category of cases in which pseudonym orders have been made, namely cases involving alleged sexual offences.
There is a proper evidentiary foundation for the application. I find there is a real risk of the plaintiff suffering psychological harm as a result of the publication of his name on the basis of the evidence given by Dr Waller in her affidavit and the psychologist’s report. Further, that the publication of his name may adversely impact the plaintiff’s mental health given the nature of the allegations.
I have considered the important and fundamental principle of open justice. However, given the factors above it is appropriate to make the pseudonym order. Further, the following statement made by T Forrest J in XYZ v State of Victoria & Anor is apt and applicable here.
Finally, a pseudonym order will not preclude media reporting of the proceeding. Directions hearing and the trial itself will be conducted in open court. The extent of interference with the principles of open justice that is likely to be occasioned by this order is minimal and I am satisfied that the proper requirements for the administration of justice warrant the making of the order.[10]
[10]XYZ v State of Victoria & Anor [22e].
The following orders will be made.
THE COURT ORDERS THAT:
The proceeding shall be referred to as XBA v His Grace The Most Reverend Denis Hart Archbishop For The Diocese Of Melbourne As Administrator Ad Litem For The Estate Of His Grace The Most Reverend Daniel Mannix Archbishop For The Archdiocese Of Melbourne (Deceased) And Ors (according to the attached Schedule).
The plaintiff be granted leave to continue the proceeding by filing an amended writ so that:
(a)the plaintiff in the proceeding is not required to be identified therein by his true name but shall instead be referred to by the pseudonym ‘XBA’; and
(b)the plaintiff is not required to comply with the requirements of Rule 5.07.1 of Chapter 1 of the Supreme Court (General Civil Procedure) Rules 2015 and the plaintiff’s address for service on the writ be that of his solicitors.
An authenticated copy of this order shall be served on the defendants with the amended writ.
All documents filed or otherwise placed on the court file prior to the date of this order be placed within the confidential documents folder of the court file and not to be made available for inspection unless by order of a judge or associate judge.
All documents subsequently filed in the proceeding shall identify the plaintiff as set out in [1] and [2], save for the jurat of any affidavit required to be sworn or affirmed by the plaintiff.
The parties are at liberty to inspect the court file.
Costs reserved.
SCHEDULE OF PARTIES
| XBA | Plaintiff |
| and | |
| HIS GRACE THE MOST REVEREND DENIS HART ARCHBISHOP FOR THE DIOCESE OF MELBOURNE as administrator ad litem for THE ESTATE OF HIS GRACE THE MOST REVEREND DANIEL MANNIX ARCHBISHOP FOR THE DIOCESE OF MELBOURNE (DECEASED) | First Defendant |
and
| HIS GRACE THE MOST REVEREND DENIS HART ARCHBISHOP FOR THE DIOCESE OF MELBOURNE as administrator ad litem for THE ESTATE OF HIS GRACE THE MOST REVEREND JUSTIN SIMMONDS ARCHBISHOP EMERITUS FOR THE DIOCESE OF MELBOURNE (DECEASED) | Second Defendant |
| and | |
| HIS GRACE THE MOST REVEREND DENIS HART ARCHBISHOP FOR THE DIOCESE OF MELBOURNE as administrator ad litem for THE ESTATE OF HIS EMINENCE CARDINAL JAMES KNOX ARCHBISHOP OF THE DIOCESE OF MELBOURNE (DECEASED) | Third Defendant |
| and | |
| HIS GRACE THE MOST REVEREND DENIS HART ARCHBISHOP FOR THE DIOCESE OF MELBOURNE as administrator ad litem for THE ESTATE OF HIS GRACE THE MOST REVEREND FRANCIS LITTLE ARCHBISHOP EMERITUS FOR THE DIOCESE OF MELBOURNE (DECEASED) | Fourth Defendant |