XYZ v State of Victoria & Anor

[2016] VSC 339

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST

XYZ	Plaintiff
v
STATE OF VICTORIA	First Defendant
- and -
ANGLICARE VICTORIA	Second Defendant

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JUDGE:	T FORREST J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 June 2016
DATE OF JUDGMENT:	10 June 2016
CASE MAY BE CITED AS:	XYZ v State of Victoria & Anor
MEDIUM NEUTRAL CITATION:	[2016] VSC 339

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PRACTICE AND PROCEDURE – Pseudonym order – Application by proposed plaintiff to suppress publication of name and names of others in proposed proceeding – Discretionary considerations – Open Courts Act 2013 s 7(d) and 17.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Thorne	Maurice Blackburn
For the First Defendant For the Second Defendant	Ms F. Batten No appearance	Victorian Government Solicitors Office

HIS HONOUR:

1. The proposed plaintiff has made an application for an order enabling him to commence and to continue a proceeding using a pseudonym. Court documents would identify the proposed plaintiff by use of the letters “XYZ” but publication would not be prohibited of anything relating to the proceedings. Rather, the parties would use in court or in connection with the proceeding the letters “XYZ” to identify the proposed plaintiff.

1. The proposed plaintiff also seeks an order enabling him to refer to other individuals, including the relevant employees of the defendants, using the following pseudonyms:

(a)        The proposed plaintiff’s foster father by use of the letters “ABC”;

(b)        The proposed plaintiff’s foster mother by use of the letters “DEF”;

(c)        The proposed plaintiff’s step-sister by use of the letters “MNP”;

(d)       The proposed plaintiff’s half-brother by use of the letters “NXB”;

(e)        A former employee of the second defendant by use of the letters “NFB”; and

(f)         A current employee of the first defendant by use of the letters “GHI”.

1. In addition, the proposed plaintiff seeks an order that those documents used in this application that identify him and the other individuals, being the affidavit of Dimi Ioannou sworn 29 April 2016, remain confidential to the proposed plaintiff and his advisers.

1. The second defendant indicated prior to the hearing of this application its consent to the orders sought by the proposed plaintiff and no appearance was required.

1. For the reasons that I will provide in due course, I will grant the application for pseudonym orders and I will order that the affidavit of Dimi Ioannou sworn 29 April 2016, including Exhibits “DI-1”, “DI-2” and “DI-3”, be placed on the Court file in a sealed envelope only to be opened on the order of a judge.

1. The affidavit sworn by Dimi Ioannou deposed to the material facts upon which the plaintiff’s claim will be based, although no draft statement of claim was exhibited.

1. The proposed plaintiff intends to institute proceedings against the State of Victoria and Anglicare Victoria seeking compensation for injuries he sustained as a result of an alleged breach of duty of care owed to the proposed plaintiff by the first defendant and an alleged breach of trust owed to the proposed plaintiff by the second defendant.  

1. Confidential information of a sensitive nature pertaining to the proposed plaintiff, being the proposed plaintiff’s given name and current surname, the given name and surname of the proposed plaintiff’s foster parents and the suburb in which the foster parents lived, was disseminated from the first defendant to the second defendant, who acted for the proposed plaintiff’s half-brother.  The proposed plaintiff alleges that the first defendant knew or ought to have known that the proposed plaintiff’s half-brother was a volatile and dangerous person with a criminal and anti-social history, including sexually abusive behaviour, assaults on children and adults and substance abuse issues. The second defendant then provided this confidential information to the proposed plaintiff’s half-brother.  

1. The proposed plaintiff alleges that by reason of the negligence of the first and second defendants, the proposed plaintiff was able to be contacted by his half-brother and as a consequence of such contact was inducted to live the life of a homeless person, engage in the excessive consumption of alcohol and tobacco, engage in criminal acts and in acts of prostitution.  Further, the proposed plaintiff was introduced to illicit drug use and encouraged to engage in acts of self-harm by his half-brother.

1. The proposed plaintiff is 23 years of age.  He has a history of intellectual disability secondary to congenital Arnold Chiara malformation.  The proposed plaintiff has attended schools for children with special needs, where he has exhibited impaired judgement and decision-making skills, nativity and a susceptibility to being easily impressionable. State Trustees Limited were appointed Administrator of the proposed plaintiff’s affairs on 9 March 2012. 

1. Broadly, the proposed plaintiff advances three reasons for seeking a pseudonym order -

(a)proceeding without a pseudonym is likely to occasion him physical and psychological harm;

(b)proceeding without a pseudonym would cause distress and embarrassment to him given the sexual nature of the allegations; and

(c)the age of his half-brother at the time of his initial contact with him, being 17 years.

1. For the purposes of this application, a report of Dr Ricardo Peralta, Consultant Psychiatrist at Darebin Community Mental Health Clinic, dated 7 February 2014 was exhibited to the affidavit of Dimi Ioannou sworn 29 April 2016, Exhibit “DI-3”. Dr Peralta was the proposed plaintiff’s treating psychiatrist for the period of his admission from 15 January 2012 to 13 February 2012. 

1. Dr Peralta diagnosed the proposed plaintiff as suffering from adjustment disorder, drug-induced psychosis, methamphetamine abuse, intellectual disability and as experiencing thoughts of suicidal ideation.  

1. Dr Peralta reported that the proposed plaintiff was admitted as an involuntary patient to the Northern Hospital Psychiatric Unit on 15 January 2012, having been transferred from the Austin Emergency Department.  He was admitted to the Unit by police after exhibiting behavioural disturbance in the context of methamphetamine abuse, attempting to self-harm by banging his head against a wall.  He presented as anxious, distressed and agitated and was reported to be experiencing pseudo-hallucinations.  He was treated with antipsychotic mediation, Quetiapine and Olanzapine, during his admission.

1. The proposed plaintiff’s mental condition stabilised shortly after admission, a circumstance that enabled him to be transferred to a low-dependency unit.  He frequently, however, absconded from the unit with the consequence that he was readmitted to a high-dependency unit.  The proposed plaintiff’s admission was also extended by reason of difficulties associated with obtaining suitable accommodation – his foster parents had indicated they were unable to continue to provide accommodation for him because of the disruptive nature of his behaviour.  Dr Peralta concluded that, given the proposed plaintiff’s drug-induced psychosis was rapidly resolving, he no longer required the assistance and management of mental health services.  The proposed plaintiff was subsequently discharged to Edwards Lodge, a supported residential service, and his continued care was administered by Disability Services. 

1. It is not in doubt that the court has an inherent jurisdiction to control its procedures and processes. Until recently, the court’s power to close its proceedings by suppression orders and closed court orders was regulated by ss 18 and 19 of the Supreme Court Act 1986.  Those provisions have now been replaced by the Open Courts Act 2013.  However, that Act does not limit or otherwise affect a court making an order that conceals the identity of a person by restricting the way the person is referred to in open court, or prohibiting or restricting access to the court file.[1] 

   [1]See Open Courts Act 2013 s 7(d).

1. The Open Courts Act recognises that a pseudonym order differs from other restrictions on open justice, such as suppression orders and closed courts orders. When a proceeding suppression order is made under the Open Courts Act[2], it is necessary to comply with Part 3 of the Act. The order that I propose to make will not constitute a proceeding suppression order. There will be no effect on the public nature of the proceedings and the ability of the media to fully report on proceedings will only be restricted on the issue of the identity of the proposed plaintiff and other individuals involved.[3]  The order will not directly restrain conduct by publication, although a potential liability in contempt may arise on breach of the order,[4] but no need arises for media proprietors to be heard in respect of either the making or the revocation of the order. My order will be subject to any further order.

   [2]See Open Courts Act 2013 s 17.

   [3]See the comments in X v Sydney Children’s Hospitals Speciality Network [2011] NSWSC 1272, [15] and Witness v Marsden & Anor (2000) 49 NSWLR 429.

   [4]AAA v BBB (Unreported, Supreme Court of Victoria, Ashley J, 26 August 1994), 6-7; R v Savvas, Stevens & Peisley (1989) 43 A Crim R 331; Attorney-General for NSW v Mayas Pty Ltd (1988) 14 NSWLR 342, 355.

1. At common law, the power to make pseudonym orders is well established.[5] One category of case[6] 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.[7] In BK v ADB,[8] Nettle J accepted that pseudonym orders may be made in -

a case where disclosure of the identity of the plaintiffs might be sufficient to deflect the plaintiffs from prosecuting their case; which is to say they might reasonably be deterred from bringing proceedings unless public disclosure of their identities could be prevented.

[5]Witness v Marsden & Anor (2000) 49 NSWLR 429; R v Smith (1996) 86 A Crim R 308; Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47; John Fairfax Group Pty Ltd (receivers and managers apptd) & Anor v Local Court of NSW & Ors (1991) 26 NSWLR 131.

[6]The other standard categories of cases concern national security, police informers and undercover police operatives, and in blackmail, extortion, sexual servitude and slavery cases.

[7]XG v Medical Practitioners Board of Victoria [2010] VSC 79; The Age Co Ltd & Ors v Magistrates’ Court of Victoria & Ors [2004] VSC 10; Victorian Lawyers RPA Ltd v ‘X’ [2001] VSC 432; Witness v Marsden & Anor (2000) 49 NSWLR 429; R v Savvas, Stevens & Peisley (1989) 43 A Crim R 331.

[8][2003] VSC 129, [10].

1. 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;[9]

(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.

[9]See also ANN v ABC & XYZ (No 1) [2006] VSC 348; A v Peters [2011] VSC 478; National Australia Bank Ltd v KRDV (2012) 292 ALR 639; ABB (by her litigation guardian ABC) v D1 [2013] VSC 81; TTT & JJJ v State of Victoria [2013] VSC 162.

1. It is convenient to refer to the succinct distillation of principle by J Forrest J in ABC v D1 & Ors Ex Parte The Herald Sun & Weekly Times Ltd:[10]

   [10][2007] VSC 480. This distillation of the applicable principles has been followed or cited by a number of judges of the trial division of this court.

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, to use the words of the statute, 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.[11]

[11]Ibid, [65]-[71].

1. 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.  In TTT and JJJ v State of Victoria,[12] Cavanough J stated:

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.  Further or alternatively, it might confirm the reasonableness of the fear expressed by or on behalf of the applicant.  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.  (Citations omitted)

[12][2013] VSC 162, [18].

1. I have carefully considered the fundamental principle of open justice[13] and the countervailing considerations put on behalf of the applicant that favour making the pseudonym order. I am satisfied on each ground advanced by the proposed plaintiff that public disclosure of his identity would prejudice the administration of justice for the following reasons:

(a)There is a real risk of the proposed plaintiff suffering psychological harm as a result of the publication of his name.

(b)That publication of the proposed plaintiff’s name may cause distress and embarrassment to him given the sexual nature of the allegations.

(c)I infer from Dr Peralta’s report that the proposed plaintiff is in a vulnerable psychological condition and deterioration in his condition could have significant implications for his ongoing health. He is, in my view, entitled to pursue a claim for damages without undertaking a significant risk that his health will deteriorate to the extent that he can be protected by a pseudonym order.

(d)The fact that the proposed plaintiff’s half-brother was a minor at the time of his initial contact with the proposed plaintiff.

(e)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.

[13]See generally Hogan v Hinch [2011] HCA 4, [20]-[27].

1. Accordingly, I have ordered that –

1.          In this proceeding:

(a)        the proposed plaintiff commence proceedings against the State of Victoria and Anglicare Victoria (‘the proceedings’) as proposed without divulging the name of the proposed plaintiff and in lieu the proposed plaintiff only be referred to by the pseudonym “XYZ”;

(b)        the other individuals only be referred to by the following pseudonyms:

(i)        the proposed plaintiff’s foster father by use of the letters “ABC”;

(ii)       the proposed plaintiff’s foster mother by use of the letters “DEF”;

(iii)      the proposed plaintiff’s step-sister by use of the letters “MNP”;

(iv)       the proposed plaintiff’s half-brother by use of the letters “NXB”;

(v)       a former employee of the second defendant by use of the letters “NFB”;

(vi)      a former employee of the first defendant by use of the letters “GHI”; and

(c)       all documents filed in this case only refer to the proposed plaintiff and the other individuals by the pseudonyms as listed in order 1(a) and (b).

2.          The proceedings be commenced on or before 4.00pm on 1 June 2016.

3.          This order be given the file number of the proceedings and placed on the court file.

4.          Any transcript of today’s hearing be given the file number of the proceedings and be placed on the court file.

5.          Pursuant to order 28.05(2) of the Supreme Court Rules (General Civil Procedure) 2005, the affidavit of Dimi Ioannou sworn 29 April 2016, including Exhibits “DI-1”, “DI-2” and “DI-3”, are to remain confidential and be placed on the Court file in a sealed envelope that is not to be opened nor its contents revealed to any person except by order of a judge.  

6.          An authenticated copy of this order shall be served on the defendants with the writ.

7.          The costs of this application are the proposed plaintiff’s costs in the cause.

8.          Liberty to apply.