“XYZ 1” v State of Victoria
[2001] VSC 233
•16 July 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 5867 of 1999
| "XYZ 1" | Plaintiff |
| v | |
| STATE OF VICTORIA | First Defendant |
| and | |
| CHILD AND FAMILY SERVICES BALLARAT INC. | Second Defendant |
| and | |
| HYLTON SEDGMAN | Third Party |
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JUDGE: | Gillard J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 July 2001 | |
DATE OF JUDGMENT: | 16 July 2001 | |
CASE MAY BE CITED AS: | "XYZ 1" v State of Victoria & Ors | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 233 | |
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Application by newspaper for access to court file – Rule 28.05(1) – right to access.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant (The Age Company Limited) | Mr S. O'Meara | Minter Ellison |
| For the Plaintiff | Mr G. Chancellor | Maurice Blackburn Cashman |
| For the Second Defendant | Mr J. Ruskin QC with Mr R. Attiwill | Victorian Government Solicitor |
| For the Second Defendant | Mr J. Robinson | Heinz & Partners |
TABLE OF CONTENTS
Proceeding........................................................................................................................................... 2
Newspaper’s summons..................................................................................................................... 3
Right of Inspection............................................................................................................................ 4
Attitude of parties............................................................................................................................... 6
Conclusion........................................................................................................................................... 9
HIS HONOUR:
This is the return of a summons filed by the proprietor of The Age Newspaper, The Age Company Limited, seeking an order that all documents on the Court file in the proceeding be released to the Applicant for inspection, save for an affidavit sworn on 16 June 1999 and the exhibits thereto.
Proceeding
By an order of Warren J made 22 June 1999, the plaintiff was given permission to commence a proceeding by using the pseudonym "XYZ 1". On 23 June 1999, a writ was issued on behalf of the plaintiff.
The first defendant was the State of Victoria and the second defendant was Child and Family Services Ballarat Inc.
According to the statement of claim, the plaintiff was made a ward of the Children’s Welfare Department of the State of Victoria in 1954 and remained a ward until early 1967. During that period, she was housed at the Ballarat Orphanage. The second defendant in the proceeding is an incorporated association and the successor to the committee of management at the Orphanage.
During a period of some four months, whilst at the Orphanage, the plaintiff was subjected to physical, psychological and sexual abuse.
It is alleged that as a result of the abuse, the plaintiff suffered injury, loss and damage. Accordingly she claims damages against both defendants.
In the statement of claim, the plaintiff named a person called Hylton Sedgman as one of those who sexually abused her. He was joined as a third party by the State of Victoria.
All interlocutory steps have been completed and the proceeding is fixed for trial by jury commencing on 12 November 2001.
The order made by Warren J contained a form of suppression order. It was expressed in paragraph 4 as follows –
"4. Publication is prohibited of any report of:
(a) the hearing of this Application;
(b) the contents of any Affidavit in support of, and the Order made in, this Application;
(c) the Statement of Claim or any subsequent document in the proposed proceeding or any information derived therefrom;
(d) the hearing of any interlocutory process in the proposed proceeding;
to the extent only that publication might tend to identify the Plaintiff."
Paragraph 6 of the order made it clear that paragraph 4 and other paragraphs were subject to an order being made to the contrary.
It is noted that paragraph 4 of Her Honour’s order prohibits publication of anything that might tend to identify the plaintiff. But that would not prohibit the report of the contents of the statement of claim or any other documents filed in the proceeding, or the hearing of any application, so long as the publication did not identify the plaintiff. Care will have to be taken, in respect of any publication, of the circumstances of the case.
Newspaper’s summons
A journalist employed by The Age, Julie-Anne Davies, approached the Court, seeking access to the file in this proceeding. She was advised by the Prothonotary that he would not give her access to the file. The Prothonotary was relying on the power he has under Rule 28.05(2)(b). It was his opinion that the file ought to remain confidential to the parties, and he therefore refused access.
In an e-mail sent to the court Media Officer, the Prothonotary gave, as his reason for keeping the file confidential, that "the files relate to allegations of abuse of a minor whilst in a govt. run orphanage and contain some very detailed accounts of the alleged abuse suffered."
On 21 June 2001, the applicant filed a summons seeking an order that the newspaper have permission to inspect and obtain copies of documents on the court file.
The application is made pursuant to Rule 28.05(2)(b) of the Rules of Court.
On the return of the summons, counsel represented the plaintiff and both defendants. I was informed, by counsel appearing for the State of Victoria, and assured that Hylton Sedgman had been informed of the application. He did not appear.
Right of Inspection
It is necessary, at this stage, to note and emphasise two matters.
First, the defendants and the third party have not made any application, pursuant to ss.18 and 19 of the Supreme Court Act 1986 or the inherent jurisdiction of the Court, for an order prohibiting the publication of any information or part of the proceeding.
Secondly, the serious allegations made by the plaintiff in her pleading are precisely that. They are allegations, which at this stage are unproven and untested.
Rule 28.05 provides -
"(1) When the office of the Court is open, any person may, on payment of the proper fee, inspect and obtain a copy of any document filed in a proceeding.
(2) Notwithstanding paragraph (1) –
(a) no person may inspect or obtain a copy of a document which the Court has ordered remain confidential;
(b)a person not a party may not without leave of the Court inspect or obtain a copy of a document which in the opinion of the Prothonotary ought to remain confidential to the parties."
According to the sub-rule, every person is entitled to inspect and obtain a copy of any document filed in a proceeding, subject to two conditions. They are, that the Court office is open and that a fee is paid.
That right however, may be curtailed firstly, in respect of a document which a Court has ordered remain confidential and secondly, where the Prothonotary was of the belief that a document should remain confidential to the parties.
A file is made up of a number of documents, and it would indeed be a very rare case where every document in the file leads the Prothonotary to form the belief that the whole file should remain confidential. That is what the Prothonotary has done here.
As sub-paragraph (b) of paragraph 2 makes clear, in the event that the Prothonotary forms the opinion that the document should remain confidential, the Court may override that opinion. That is what the applicant seeks by its summons.
In the case of Re A Former Oficer of A.S.I.O. (1987) VR 875, Brooking J, after referring to the Rules in force at the time and the new Rule (which became Rule 28.05), observed at p.878 –
"The Victorian Court presently proceeds on the basis that the public has a right to inspect documents filed and even when the new Ch. I comes into force that will remain the general rule."
The general rule is that the applicant has the right to inspect the file and obtain a copy of any document filed on it, upon payment of the fee. The right is curtailed or removed if, the Prothonotary forms an opinion that a document or documents should remain confidential to the parties or the Court rules that a document remain confidential. The Court may override the Prothonotary’s decision, and grant leave to a person to inspect the file and take a copy of a document.
As the Court has a discretion under Rule 28.05(2)(b), it would be open to a party opposing the application to argue for conditions to be attached to the inspection and copying.
Attitude of parties
Counsel of behalf of the plaintiff, Mr Chancellor, informed the Court that the plaintiff had no objection to the order being made in favour of the applicant, upon the applicant giving certain undertakings which, in effect, preserve the anonymity of the plaintiff. Counsel for the applicant, Mr O’Meara, stated that the applicant was prepared to give such an undertaking. I query whether an undertaking is necessary, bearing in mind the clear terms of the order made by Warren J.
The State of Victoria opposes the application. Mr Ruskin QC, who appeared with Mr Attiwill of counsel, opposed the making of the order, substantially on the ground that the making of an order was discretionary and that there was a real risk that if the order was made, The Age Newspaper would publish an article, which may prejudice the interest of the defendants and, one assumes, the third party, and hence place in jeopardy a fair trial by a jury.
Counsel for the second defendant, Mr Robinson, opposed the making of the order, not only for the reasons advanced by the State, but also because there was a real risk that the applicant would identify the plaintiff and secondly, that it would be unfair to the second defendant, because adverse publicity to it would have a detrimental effect upon the association’s ability to provide services to the community. It was emphasised that it was a non-profit community-based association which provided services to citizens in the community, and was funded both by government grants and community donations.
It is convenient to briefly deal with the matters raised by the second defendant. The first matter, namely the risk of identification of the plaintiff, is clearly a matter for her and her legal advisers. No doubt they have fully considered the matter and they have no opposition to the order being made. Further, an order has already been made which prohibits the publication of any such information, the order binds all persons and all organisations in this State, and there is no basis for thinking that The Age Newspaper would breach the order. I reject the contention by the second defendant that there is a concern that the plaintiff may be identified.
I also reject the second matter raised. It is a fact of life that parties are joined to litigation and sometimes, this may have an adverse effect upon their character and reputation, but that mere fact alone is rarely, if ever, accepted as a reason for suppression. Further, one cannot say what The Age may do with the information gleaned from the file, and I would not be prepared, at this stage, to assume that anything would be said concerning the second defendant which may prejudice its reputation. I have no doubt that the representatives of The Age are fully aware of the laws of libel, and would note that the events alleged were in respect of a former committee of management of the second defendant and occurred over thirty years ago.
That brings me to the matter raised by the State that there was a real risk that a fair trial may be prejudiced by the publication of any information contained in the Court file. The State did not argue that the reasons given by the Prothonotary could justify keeping the whole file confidential.
When analysed, the point taken by the State of Victoria is really an application by it for a suppression order under ss.18 and 19 of the Act and the inherent jurisdiction of the Court. What the State sought was a condition attached to any order permitting The Age Newspaper to inspect and obtain a copy of any document on the file, to the effect that it be subject to a prohibition on The Age publishing any information obtained prior to the hearing and determination of the trial of the proceeding in November this year.
The first point that is made is, that a heavy burden rests upon a party to a proceeding to establish a ground for prohibiting the publication of any part of a proceeding. There is no doubt that the Court may make an order if it is satisfied, amongst other things, that there would be prejudice to the administration of justice if there was publication. As I understood Mr Ruskin QC, it was on that basis that he sought the condition being attached to the order. The reality is that what Mr Ruskin QC is seeking is an order suppressing prohibition, without making an application to that effect.
The second point is that, at present, the Court is not in a position to know what The Age Newspaper proposes to do with any information it obtains from the file. Mr Ruskin QC drew attention to paragraph 4 of the affidavit of Julie-Anne Davies which states –
"4.The issue of abuse at state run institutions is of great public interest throughout Victoria. There have been significant civil claims in recent years made in respect of such abuse. Those claims have attracted publicity in The Age and considerable public interest."
It is a fair inference that The Age Newspaper will publish some of the information that appears in the file. In determining what to publish, I have no doubt that The Age editorial staff would fully consider the implications of what the paper was proposing to do, with particular reference to the laws of libel and the subjudice rule. In the absence of any further information as to what The Age is likely to publish and when, the Court will be speculating as to whether or not there is any risk that what is published may prejudice the trial of the proceeding before the jury in November this year.
The editorial staff of The Age Newspaper would be well aware of the strict requirements of the subjudice rule, namely, that it not publish any information or observation seeking to pre-judge the issues which are before the Court, or do anything which would be likely to cause prejudice or undermine the public confidence in the Court. On the evidence before the Court, I am not persuaded that there is any risk that The Age, if it chooses to publish any information, would interfere with the administration of justice.
Mr Ruskin QC submitted that it was most likely an article would appear, that the article would, of necessity, reflect adversely upon the Orphanage and all those associated with it, and accordingly, there was a real risk of serious interference with the administration of justice because of the impact such an article may have upon likely jurors. In this regard, I respectfully agree with the observations made by the Full Court in National Mutual Life Association of Australasia Ltd v G.T.V. Corporation Pty Ltd and Ors (1989) VR 747 at 762, where their Honours said –
"We think that the intelligence of Australian jurors and witnesses is frequently underrated, especially by counsel in arguments on appeal."
I am not persuaded by the submissions of the State that there is any risk to the administration of justice by the publication of any information that is alleged in the Court documents. I would expect that any article written would emphasise that what is being said are allegations, and not proven fact. The editorial staff at The Age would appreciate the importance of juries going about their task free from prejudice and would take steps to ensure it does not happen. Whilst this is vital to the administration of justice, the public interest demands a free press. Both interests must be safeguarded. There is no evidence before the Court which would lead to the conclusion that the newspaper will endanger the fair trial later this year.
Mr Ruskin QC did not seek to uphold the opinion of the Prothonotary that the whole file should remain confidential. The reasons given by the Prothonotary, in my respectful opinion, do not form a proper basis for keeping the file confidential.
Conclusion
I am satisfied that the applicant does have the right to inspect and copy any document on the file in the proceeding, and that the order of Warren J will ensure the anonymity of the plaintiff. No application has been made for a suppression order under ss.18 and 19 of the Supreme Court Act 1986 and on the material before the Court, no order could be made under those sections.
I will hear counsel on behalf of the plaintiff and the applicant as to the terms of any undertaking to be given by the applicant with respect to preserving the anonymity of the plaintiff, and subject to that undertaking and submissions of counsel, I propose to make the following orders –
(i)That The Age Company Limited have leave to inspect and obtain a copy of any document filed in the proceeding, save for any document referred to in the order of the Honourable Justice Warren made 22 June 1999.
(ii)That the defendants pay the costs of the plaintiff and The Age Company Limited of the summons filed 21 June 2001.
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