ZYX (pseudonym initials) v Cable [No 3]
[2023] WADC 10
•7 FEBRUARY 2023
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: ZYX (pseudonym initials) -v- CABLE [No 3] [2023] WADC 10
CORAM: HERRON DCJ
HEARD: 12 DECEMBER 2022 & WRITTEN SUBMISSIONS FILED 18 & 23 DECEMBER 2022
DELIVERED : 7 FEBRUARY 2023
FILE NO/S: CIV 874 of 2019
BETWEEN: ZYX (pseudonym initials)
Plaintiff
AND
BARRY THOMAS CABLE
Defendant
WEST AUSTRALIAN NEWSPAPERS LTD and CHANNEL 7 PERTH PTY LTD
First Interveners
AUSTRALIAN BROADCASTING CORPORATION
Second Interveners
Catchwords:
Civil procedure - Suppression orders - Suppression of parties' name in child sexual abuse cases - Action proceeding to trial - Defendant no longer participating in proceedings - Defendant declared bankrupt - Whether anonymisation of the defendant's name and suppression order prohibiting reporting of the proceedings to identify the defendant remains appropriate
Legislation:
Nil
Result:
Order that defendant's name be anonymised and that there be an order suppressing publication of the proceedings which would identify the defendant set aside
Representation:
Counsel:
| Plaintiff | : | Mr T J Hammond |
| Defendant | : | In person (Mr C K Pearce appeared as a friend of the court) |
| First Interveners | : | Outline written submissions have been received by Mr A V McCarthy for representing West Australian Newspapers Ltd and Channel 7 Perth Pty Ltd |
| Second Interveners | : | Mr C Jankie |
Solicitors:
| Plaintiff | : | Rightside Legal |
| Defendant | : | Not applicable |
| First Interveners | : | Steedman Stagg Lawyers |
| Second Interveners | : | ABC Legal |
Case(s) referred to in decision(s):
[Anonymised] v BC [2019] WADC 137
JD v ZYX [2022] WASCA 136
TK v Australian Red Cross Society (1989) 1 WAR 335
ZYX (pseudonym initials) v JD (pseudonym initials) [2019] WADC 164
ZYX (pseudonym initials) v JD (pseudonym initials) [No 2] [2021] WADC 20
HERRON DCJ:
The trial of this action is due to commence on 8 February 2023. The action has been subject to various suppression orders by which the identification of the parties and the public reporting of the proceedings has been prohibited.
The defendant has previously brought two applications for a permanent stay of the action against him. The history of those proceedings is summarised in JD v ZYX.[1] Briefly, the first application for a permanent stay of proceedings was heard before Sleight CJDC (as he then was) on 10 June 2019 who, on 26 September 2019, dismissed the application for reasons which were subsequently published on 26 November 2019, although some passages were suppressed for the purposes of ensuring the anonymity of each of the plaintiff and the defendant.[2] The original reasons were delivered in [Anonymised] v BC[3] and West Australian Newspapers Limited and Channel 7 Perth Pty Ltd as intervener, but were not published.
[1] JD v ZYX [2022] WASCA 136 [1] - [7].
[2] ZYX (pseudonym initials) v JD (pseudonym initials) [2019] WADC 164.
[3] [Anonymised] v BC [2019] WADC 137.
The defendant's second application for a stay of proceedings was heard before Birmingham QC DCJ (as he then was) in July and August 2020 and in written reasons for decision delivered on 18 March 2021, (which were suppressed except as to the parties) he dismissed the second application for a stay. The defendant then appealed the decision of Birmingham QC DCJ which appeal was heard and dismissed by the Court of Appeal on 13 April 2022 for reasons delivered and published on 27 October 2022.[4]
[4] JD v ZYX [2022] WASCA 136.
In his published reasons for decision,[5] Sleight CJDC considered whether suppression orders ought be made in relation to the proceedings. At [109] he proposed the following orders:
[5] ZYX (pseudonym initials) v JD (pseudonym initials) [2019] WADC 164 [103] - [108].
1.The plaintiff's name be anonymised and the plaintiff continue the proceedings under a pseudonym approved by the court.
2.Subject to order 7 below, the defendant's name in these proceedings be anonymised and the defendant continue these proceedings under a pseudonym approved by the court.
3.All court documents filed in the proceedings shall henceforth refer to the plaintiff and the defendant by a pseudonym.
4.Subject to order 7 below publication is prohibited of any report of:
(a)the commencement of the proceedings against the defendant by the plaintiff;
(b)the hearing of the application for a stay of proceedings and a suppression order together with all documents filed in relation to those applications;
(c)the writ, the endorsement of claim and any other subsequent documents in the proceedings or any information derived therefrom;
(d)any interlocutory hearing in the proceedings; and
(e)the trial in the proceedings,
to the extent only that publication might tend to identify the plaintiff and the defendant [suppressed].
5.Notwithstanding r 71 of the DCR a non-party is not entitled to search for, inspect or receive copies of any of the documents or information in these proceedings without the approval of a Registrar of the Court to ensure that such documents or information will not lead to the identification of the plaintiff and the defendant.
6.The reasons for the decision in this matter shall be published using the pseudonyms for the plaintiff and the defendant approved by the court and redacting references in the reasons which may lead to the identification of the plaintiff and the defendant.
7.The above orders which prohibit the naming of the defendant [suppressed] shall cease to operate once the final judgment of the court is delivered or further order of the court.
The settled orders for suppression were made on 11 November 2019 in the following terms:
1.…
2.The Plaintiff's name be anonymised and the Plaintiff continue the proceedings under a pseudonym approved by the Court.
3.Subject to Order 8 below, the Defendant's name in these proceedings be anonymised and the Defendant continue these proceedings under a pseudonym approved by the Court.
4.All court documents filed in the proceedings shall henceforth refer to the Plaintiff and the Defendant by a pseudonym.
5.Subject to Order 8 below publication is prohibited of any report of:
(a)the commencement of the proceedings against the Defendant by the Plaintiff;
(b)the hearing of the application for a stay of proceedings and a suppression order together with all documents filed in relation to those applications;
(c)the Writ, the endorsement of claim and any other subsequent documents in the proceedings or any information derived therefrom;
(d)any interlocutory hearing in the proceedings; and
(e)the trial in the proceedings,
to the extent only that publication might tend to identify the Plaintiff and the Defendant (including a prohibition against the publication which links the Defendant to Australian Rules Football in any way).
6.Notwithstanding r71 of the DCR a non-party is not entitled to search for, inspect or receive copies of any of the documents or information in these proceedings without the approval of a Registrar of the Court to ensure that such documents or information will not lead to the identification of the Plaintiff and the Defendant.
7.The reasons for the decision in this matter shall be published using the pseudonyms for the Plaintiff and the Defendant approved by the Court and redacting references in the reasons which may lead to the identification of the Plaintiff and the Defendant.
8.The above orders which prohibit the name of the Defendant and/or his connection to Australian Rules Football shall cease to operate once the final judgment of the Court is delivered or further order of the Court.
The published reasons of Sleight CJDC were redacted in various paragraphs by suppressing from publication some of his Honour's findings which would otherwise have risked the defendant being able to be identified and would have risked undermining the suppression orders subsequently made.[6]
[6] ZYX (pseudonym initials) v JD (pseudonym initials) [2019] WADC 164 [1], [19], [22], [23], [62], [64], [65], [106], [109(4)], [109(7)].
On 18 March 2021, Birmingham QC DCJ varied and extended the suppression orders made by Sleight CJDC as follows:
1.The Defendant's Second Application for an Order Permanently Staying the Action is dismissed;
2.The judgment and reasons, save for the fact of the outcome of the application, be suppressed until final judgment of the action or further order of the Court.
3.…
4.…
5.…
6.That paragraph 6 of the orders made by His Honour the Chief Judge on 26 September 2019 be varied, such that:
6.Notwithstanding r71 of the DCR a non-party is not entitled to search for, inspect or receive copies of any documents or information in these proceedings without the approval of a Judge of the Court to ensure that such documents or information will not lead to the identification of the Plaintiff and the Defendant.
7.The suppression order made on 30 July 2020 remains, that together with paragraph 5 in the orders made by Chief Judge Sleight on 26 September 2019, until after final judgment is delivered or further order of the Court:
(i)Publication is prohibited of any report naming any witness, or which might tend to identify any witness or potential witness (which includes the reporting of the nature of the relationship of that witness to either of the parties) who is named during the application for a stay of the action and any other interlocutory applications before the Court; and
(ii)That the identity of the Deponent of the affidavit marked as document 177 on the District Court List of Documents be anonymised and hereafter referred to as TT.
Therefore, except to the parties, the written reasons for decision of Birmingham QC DCJ[7] have been suppressed and have not been published.
[7] ZYX (pseudonym initials) v JD (pseudonym initials) [No 2] [2021] WADC 20.
The Court of Appeal in JD v ZYX[8] also made a further suppression order in relation to the hearing of the appeal.
[8] JD v ZYX [2022] WASCA 136 [7].
At a directions hearing on 9 November 2022 I raised with the parties whether the suppression orders originally made by Sleight CJDC, as subsequently varied and extended by Birmingham QC DCJ, should continue or be varied.[9] At a further directions hearing on 12 December 2022 I heard brief submissions from counsel for the plaintiff. Except to maintain the orders requiring anonymisation of the plaintiff and that any public reporting of the proceedings not be able to identify her, the plaintiff did not otherwise seek to be heard in relation to whether the suppression orders ought continue or be varied.[10]
[9] ts 197 - ts 199.
[10] ts 214 - ts 220.
There was no appearance for the defendant at that hearing. Counsel who appeared sought leave to appear as a friend of the court and handed up a notice filed that morning and signed by the defendant informing the court that he intended to act in person. Counsel informed the court that the defendant intended to take no further part in the proceedings, other than relying on the filed amended defence.[11]
[11] ts 204 - ts 208.
I gave leave for the media to be heard as to whether the suppression orders be varied and, relevantly, made the following orders:[12]
1.A copy of the transcript of today's hearing be provided to the Defendant.
2.If the Defendant wishes to make any submissions regarding the continuation of the suppression orders, and in particular the suppression of his identity, he make submissions by no later that 23 December 2022.
3.By no later than 23 December 2022, if the media wish to make any submissions regarding the status of the suppression orders, a representative on behalf of the media file written submissions and, at the same time, advise the court whether they wish to make oral submissions.
4.If the Plaintiff wishes to file responsive submissions, those submissions be filed and served by no later than 6 January 2023.
5.…
[12] ts 225 - ts 226.
In response to that leave the court received written submissions on behalf of West Australian Newspapers Ltd and Channel 7 Perth Pty Ltd dated 18 December 2022 and from the Australian Broadcasting Corporation dated 23 December 2022.
For the reasons which follow I vary the previously made suppression orders and order as follows:
1.The name of the plaintiff remain anonymised and the plaintiff continue the proceedings under the pseudonym ZYX.
2.All court documents filed in the proceedings shall continue to refer to the plaintiff by the pseudonym ZYX.
3.Publication of any report of the proceedings is prohibited to the extent only that publication might tend to identify the plaintiff, which includes prohibition of any report naming any witness, which might tend to identify the plaintiff (which includes the reporting of the nature of that relationship of that witness to the plaintiff), and includes any person who was named during the applications for a stay of the action and any other interlocutory applications before the court.
4.The identity of the deponent of the affidavit marked as document 177 on the District Court list of documents remain anonymised and be referred to as TT.
5.Notwithstanding r 71 of the DCR a non-party is not entitled to search for, inspect or receive copies of any documents or information in these proceedings without the approval of a judge of the court to ensure that such documents or information will not lead to the identification of the plaintiff.
6.The above orders continue until further order of the court.
The law
As Sleight CJDC explained in ZYX (pseudonym initials) v JD (pseudonym initials):[13]
The suppression applications of the defendant raise a number of issues:
1.Whether the identity of the plaintiff's identity should remain anonymous.
2.Whether the defendant's identity should be anonymous.
3.Whether it is appropriate to make orders preventing non-parties to the action access to the statement of claim.
4.Whether a wide suppression order should be made in relation to the proceedings until further order of the court.
[13] ZYX (pseudonym initials) v JD (pseudonym initials) [2019] WADC 164 [59].
I respectfully adopt, without repeating, Sleight CJDC's analysis and explanation of the relevant law regarding suppression of court proceedings.[14]
[14] ZYX (pseudonym initials) v JD (pseudonym initials) [2019] WADC 164 [66] - [84].
As was the case in ZYX v JD[15], before me neither the defendant nor interveners opposed the anonymisation of the plaintiff's name by the use of initials in these proceedings.[16]
[15] ZYX (pseudonym initials) v JD (pseudonym initials) [2019] WADC 164.
[16] ZYX (pseudonym initials) v JD (pseudonym initials) [2019] WADC 164 [85]; First intervenor's written outline of submissions, par 2; Second intervenor's written submissions only address the suppression orders insofar as they are affect the defendant and do not suggest that the orders insofar as they affect the plaintiff ought be varied.
In ruling that the defendant's name should be suppressed and his name be anonymised and that there should be no reporting of the proceedings which enabled the defendant to be identified, Sleight CJDC found:
1.If the plaintiff's name is suppressed but the defendant's is not, an imbalance arises.[17]
2.There were strong public policy reasons why a plaintiff's name should be anonymised in proceedings claiming damages for child sexual abuse and this protection provided to the plaintiff creates an imbalance which undermines the administration of justice by giving the plaintiff an unfair advantage if the defendant's name is not also anonymised.[18]
3.If an order was not made, the defendant would be subjected to an extended period of publicity of the allegations against him of having committed acts of child sexual abuse. Given the nature of these allegations there was likely to be some sections of the community hostile towards the defendant.[19]
4.The defendant's age was a relevant consideration when considering the extent to which he will be able to adequately cope with the pressure and embarrassment from this hostility.[20]
5.As a result of the imbalance, the plaintiff would obtain an unfair advantage in negotiations as the defendant may be overwhelmed by the length and continuing publicity the case would likely attract and seek to settle the action by a payment to the plaintiff regardless of the truth of the allegations.[21]
6.With respect to access to the documents on the court file, particularly the statement of claim, there is a distinction between documents that are filed as a part of the evidence before the court (such as affidavits) and considered by the judge and documents which simply form a part of the court file. Documentary evidence considered by a judge is subject to the principle of open justice on the basis that such evidence is expected to be helpful to a person to understand or explain the proceedings in open court or to evaluate the court's determination of the issues arising in the proceedings. However, the principle of open justice does not mean free access by the media to contents of a court file, especially where the material has not been the subject of evidence in open court.[22] The principle of open justice applies to the judicial process, not to the court file. Given the nature and sensitivity of the allegations of child sexual abuse made in the statement of claim, the statement of claim should not be accessible to non‑parties to the proceedings.
[17] ZYX v JD [2019] WADC 164 [93].
[18] Ibid at [105].
[19] Ibid at [94].
[20] Ibid.
[21] Ibid.
[22] Ibid at [102].
Since 1 July 2022, and following the decision the Court of Appeal in JD v ZYX dismissing the appeal from the judgment of Birmingham QC DCJ, dismissing the second application for a stay of proceedings, these proceedings have been case managed by me. They have proceeded to mediation before a registrar, but without resolution. A hearing to take the evidence de bene esse of a witness called by the plaintiff was conducted before me on 7 September 2022. All of the hearings conducted before me have been open to the media, although of course the suppression orders have prevented the media from reporting on the proceedings. In relation to the hearing de bene esse to take the witness' evidence, I ordered that the name of the witness be suppressed so that the plaintiff could not be identified. The defendant was represented by senior counsel at that hearing and, until 12 December 2022, has otherwise been represented throughout the conduct of the court proceedings, including at the various case management hearings before me.
As I have already noted, at the hearing before me on 12 December 2022 counsel who appeared, who had formerly acted for the defendant, advised his firm ceased to act for the defendant, and that the defendant had filed a notice of acting in person. He also informed the court the defendant did not intend to take any active part in the proceedings or the trial other than relying on the amended defence recently filed on his behalf when he was represented.
Further, counsel informed the court that the defendant was out of funds and not in a position to pay for his lawyers to continue to represent him.[23] Counsel informed the court that the defendant intended to file for bankruptcy but had not done so as at that point in time.[24]
[23] ts 205.
[24] ts 206.
Thereafter, by letter dated 19 January 2023 to the court, Mr Matthew Vines of Hall Chadwick advised that he and Mr John Shanahan were appointed as joint and several trustees of the bankrupt estate of the defendant on 19 January 2023. A certificate of appointment of trustee under the Bankruptcy Act 1966 (Cth) dated 19 January 2023 was enclosed with the letter. Mr Vines informed the court:
… I am currently considering my position and whether s 60(1) of the Bankruptcy Act 1966 is relevant.
By further letter dated 30 January 2023 Mr Vines again wrote to the court advising, inter alia:
Following my letter dated 19 January 2023, I have also been considering Section 58(3) of the Bankruptcy Act 1966 in relation to 'after a debtor has become bankrupt, it is not competent for a creditor … except with the leave of the Court … to commence any legal proceeding in respect of a provable debt or take any fresh step in such a proceeding.
As you will be aware, any Judgment now awarded against the Bankrupt in relation to the above Civil Proceedings and a personal injury claim will be a provable debt in the Bankrupt Estate. At this stage, any potential dividend to unsecured creditors in the Bankrupt Estate is uncertain.
Please be advised that the Bankrupt Estate is currently unfunded and I do not believe it is in the best interests of creditors, nor the Court's time, for the Trustees in Bankruptcy to be represented at any future hearing in the Civil Proceedings.
By letter dated 31 January 2023, Mr Vines wrote to the plaintiff's solicitor, Ms Connor-Stead, copied to the court, expressing his opinion that the District Court proceedings against the defendant had, pursuant to s 58(3)(b) of the Bankruptcy Act, been automatically stayed and pointing out that the court which has jurisdiction to grant leave pursuant to s 58(3)(b) is the Federal Court and that the District Court does not have jurisdiction in bankruptcy matters.
In response to the correspondence from Hall Chadwick, the plaintiff, through her solicitors, filed written submissions submitting the District Court proceedings concerned a cause of action in tort for personal injuries for unliquidated damages and pursuant to s 82(2) of the Bankruptcy Act the District Court proceedings did not concern a provable debt and were therefore not provable in the bankruptcy. Accordingly, s 58(3)(b) did not operate to automatically stay the District Court proceedings.
I then listed the matter for an urgent directions hearing before me on Thursday, 2 February to address the issue which had arisen.
By further letter dated 1 February 2023, Mr Vines of Hall Chadwick again wrote informing the court, relevantly, in the following terms:
As previously mentioned the Bankrupt Estate is currently unfunded and therefore I have not had an opportunity to seek legal representation in relation to the above proceedings. As a result of the Bankrupt's bankruptcy, the above proceedings are now against the Bankrupt Estate as opposed to the Bankrupt personally.
I note the comments in the Plaintiff's Submissions and also Ms Sara Connor‑Stead's Affidavit. With respect, I believe that the above Civil Proceedings have been stayed in accordance with Section 58(3)(b) of the Bankruptcy Act 1966 and leave is required to be granted by the Federal Court for the proceedings to proceed.
As mentioned in the letter dated 30 January 2023, the above Civil Proceedings in relation to the claim would be a provable debt, if a Judgment is obtained.
At the hearing before me on 2 February 2023, Mr Hammond SC appeared on behalf of the plaintiff. One of the joint trustees, Mr John Shanahan, appeared via audio visual link from Brisbane. Mr Shanahan resiled from the position outlined by Mr Vines in his correspondence to the court and conceded that if the District Court proceedings concerned a cause of action in tort, it was not provable in the bankruptcy and the bankrupt estate had no standing in the District Court proceedings. Mr Shanahan said that the trustees had not received any District Court documentation and were not aware of the nature of the action brought against the defendant, and had not obtained a copy of the pleadings, probably because of the suppression orders in place.[25]
[25] ts 232 - ts 234.
Mr Shanahan also informed the court that if the trial did proceed there would be no funds available to meet any judgment amount nor any order for costs.[26]
[26] ts 234.
I then delivered brief oral reasons ruling that the District Court action concerned an action in tort claiming unliquidated damages and is not a provable debt in the bankruptcy proceedings. Therefore, s 58(3)(b) of the Bankruptcy Act does not operate as a stay of the District Court proceedings.[27]
[27] ts 236 - ts 240.
Findings
In my view, the reasons and justification for making the orders anonymising the name of the defendant and suppressing the public reporting of the proceedings in a way which might tend to identify him, and the further order preventing a non-party from having access to court documents in the proceedings, are no longer relevant or necessary. The principal rationale or consideration for making the orders in 2019 was that absent such orders the defendant might have been deterred from seeking justice by deciding to take no active part in defending the proceedings or by seeking to settle the action by payment to the plaintiff, regardless of the truth of the allegations made. If a defendant is deterred from seeking justice unless an identity suppression order is made, it is in the interests of justice that there be a departure from the principle of open justice by the making of such an order because otherwise the paramount object of the courts 'to do justice according to law' would be defeated.[28]
[28] TK v Australian Red Cross Society (1989) 1 WAR 335, 338, 341.
Given:
(a)the defendant's position that he intends to take no further part in the proceedings and will not actively defend them;
(b)that mediation has been unsuccessful;
(c)that the availability of funding is limited and he has now filed for bankruptcy, and been declared bankrupt on 19 January 2023, resulting in his funds and assets being subject to the bankruptcy proceedings;
(d)the advice of Mr Shanahan, a trustee of the bankrupt estate of the defendant, that there will be no funds available to meet any judgment or costs order,
it is unlikely the action will be settled by a payment by the defendant to the plaintiff.
Further mediation is unlikely and in any event would seem to be futile.
Therefore, because of the defendant's stated intentions and because this matter is now proceeding to trial, in which the defendant has stated he will not participate, the defendant cannot any longer be said to be at an unfair disadvantage in relation to the plaintiff if her identity remains suppressed but his does not.
The defendant has been provided with a copy of the transcript of the proceedings before me on 12 December 2022. He has also been provided with a copy of the written outlines of submissions made by each of the media representatives. He has not filed written submissions opposing the variation of the suppression orders or in support of the current orders being maintained so that his name remain anonymised and which prohibit any reporting of the proceedings which might tend to identify him.
Although I accept that the lifting of the suppression orders, which will allow the defendant to be identified and will allow reporting of his identity, is likely to cause damage to his reputation, that is an unavoidable by-product of litigation and the principle of open justice and is not, as Sleight CJDC found[29] (with which I respectfully agree), a sufficient basis to justify the making of, or maintaining of, a suppression order.
[29] ZYX (pseudonym initials) v JD (pseudonym initials) [2019] WADC 164 [105].
Turning then to the orders made by Sleight CJDC,[30] I set aside par 3 of those orders and order that the defendant be referred to by his name, Barry Thomas Cable, in the ongoing court proceedings.
[30] [5] above.
I order that par 4 of the orders made by Sleight CJDC be varied by removing the need to refer to the defendant by a pseudonym in court documents filed in the court proceedings.
I vary par 5 of the orders made by Sleight CJDC which prohibits the reporting of the court proceedings to the extent that publication might tend to identify the defendant, the intention being that a suppression order remains in place prohibiting the reporting of the court proceedings to the extent that the publication might tend to identify the plaintiff.
I will hear further from the parties and the interveners as to the appropriate form of the order to reflect this intention, but it seems to me an order in the following terms is appropriate:
Publication of any report of the proceedings is prohibited to the extent only that publication might tend to identify the plaintiff, which includes prohibition of any report naming any witness, which might tend to identify the plaintiff (which includes the reporting of the nature of that relationship of that witness to the plaintiff), and includes any person who was named during the applications for a stay of the action and any other interlocutory applications before the court.
Paragraph 6 of the orders made by Sleight CJDC, were varied by his Honour Birmingham QC DCJ which prohibited any non‑party from searching, inspecting or receiving copies of any documents or information in the court proceedings without the approval of a judge, rather than a registrar.
It is evident from the reasons of Sleight CJDC and Birmingham QC DCJ, that affidavits and other documentation, including written submissions, were filed by each of the plaintiff and the defendant in the two applications for a permanent stay of proceedings. I have not read the affidavits filed by the parties in the two applications by the defendant for a permanent stay of proceedings. Nor have I read or reviewed the various documents which have been filed in the action, other than the pleadings, including the most recent version of the statement of claim and the defence, the documentation filed for the case management hearings, the documentation I have referred to in these reasons, and any documents filed for, or tendered into evidence at the hearing on 7 September 2022. As I am the trial judge it is not appropriate I have access to any documentation unless it is filed for the purpose of the trial or tendered in evidence during the trial.
Although the view I have taken is that it is no longer necessary or appropriate for a suppression order to remain in place regarding documentation filed in the proceedings by the defendant, or which identifies the defendant, I am of the view it is appropriate that a suppression order remain in place to ensure that the plaintiff is not identified. Without reading the filed documentation I am unable to form a view as to what filed documentation, if any, might lead to identification of the plaintiff. For the reasons I have explained I will not be in a position to make a decision about any specific documentation until after the trial and publication of my reasons for decision.
I therefore propose that par 6 of the orders made by Sleight CJDC, as varied by Birmingham QC DCJ, remains in place but only to the extent to ensure that any court documentation will not lead to the identification of the plaintiff. I propose that, on an interim basis, it be ordered that a non-party is entitled to search for, inspect or receive copies of the book of papers and any written submissions filed for the purposes of the trial due to commence on 8 February 2023. Otherwise, the order made by Sleight CJDC as varied by Birmingham QC DCJ remains in place only to the extent that it refers to the plaintiff not being able to be identified.
Turning then to par 7 of the orders made by Sleight CJDC the order should be varied to permit publication in full of the reasons for decision of Sleight CJDC in ZYX (pseudonym initials) v JD (pseudonym initials) [2019] WADC 164, delivered in [Anonymised] v BC,[31] by which the defendant is able to be identified but that the order remains in place to the extent that the publication of the reasons may lead to identification of the plaintiff. As I earlier explained,[32] [1], [19], [22], [23], [62], [64], [65], [106], [109(4)] and [109(7)] were redacted to ensure that the defendant was not able to be identified. In my view, except for part of the redaction in [64], none of the redactions if published would lead to the identification of the plaintiff. The last part of the redaction in [64] refers to some previous media coverage of allegations apparently made by the plaintiff against the defendant. I have not seen that coverage and therefore do not know whether if the suppression order was lifted in respect of that part of [64] there is a risk the information might lead to identification of the plaintiff. I will therefore hear further from the plaintiff before making a final decision in regard to the last sentence in [64].
[31] [Anonymised] v BC [2019] WADC 137.
[32] [6] above.
Otherwise, I order that in respect of all of the other redactions in [1], [19], [22], [23], [62], [64], [65], [106], [109(4)] and [109(7)], the suppression orders be lifted and, except as to the last sentence in [64], the unredacted reasons for decision in ZYX (pseudonym initials) v JD (pseudonym initials) [2019] WADC 164, delivered in [Anonymised] v BC,[33] be published.
[33] [Anonymised] v BC [2019] WADC 137.
It follows from those orders that par 8 of the orders made by Sleight CJDC now ceases to operate and there is no longer an order prohibiting the name of the defendant and his connection to Australian Rules Football being published or reported upon.
I then turn to consider the suppression orders made by Birmingham QC DCJ on 18 March 2021, including ordering that his judgment and written reasons for decision be suppressed until final judgment of the action or further order of the court.[34] In my view no proper reason remains for the judgment and reasons for decision of Birmingham QC DCJ to remain suppressed, particularly when regard is had to the publication of the Court of Appeal's reasons for decision.[35] I therefore lift the suppression order in relation to the judgment and reasons for decision of Birmingham QC DCJ and order those reasons now be published.
[34] Birmingham QC DCJ, orders made on 18 March 2021, par 2; [7] above.
[35] JD v ZYX [2022] WASCA 136.
Turning then to par 7 of the orders made by Birmingham QC DCJ which reads:
7.The suppression order made on 30 July 2020 remains, that together with paragraph 5 in the orders made by Chief Judge Sleight on 26 September 2019, until after final judgment is delivered or further order of the Court:
(i)Publication is prohibited of any report naming any witness, or which might tend to identify any witness or potential witness (which includes the reporting of the nature of the relationship of that witness to either of the parties) who is named during the application for a stay of the action and any other interlocutory applications before the Court; and
(ii)That the identity of the Deponent of the affidavit marked as document 177 on the District Court List of Documents be anonymised and hereafter referred to as TT.
That order should be varied to only prohibit publication of any report naming a witness which might lead to the identification of the plaintiff. No such order for prohibition applies to the reporting of a witness which might tend to identify the defendant.
Finally, that leaves for consideration par 7(ii) of the orders made by Birmingham QC DCJ. I have not read or viewed the affidavit referred to and subject to hearing from the parties do not propose to do so until after the trial and until after I have delivered my reasons for decision.
Conclusion
In summary, I propose the suppression orders be set aside and orders for suppression be made as follows:
1.The name of the plaintiff be anonymised and the plaintiff continue the proceedings under the pseudonym ZYX.
2.All court documents filed in the proceedings shall continue to refer to the plaintiff by the pseudonym ZYX.
3.Publication of any report of the proceedings is prohibited to the extent only that publication might tend to identify the plaintiff, which includes prohibition of any report naming any witness, which might tend to identify the plaintiff (which includes the reporting of the nature of that relationship of that witness to the plaintiff), and includes any person who was named during the applications for a stay of the action and any other interlocutory applications before the court.
4.The identity of the deponent of the affidavit marked as document 177 on the District Court list of documents remain anonymised and be referred to as TT.
5.Notwithstanding r 71 of the DCR a non-party is not entitled to search for, inspect or receive copies of any documents or information in these proceedings without the approval of a judge of the court to ensure that such documents or information will not lead to the identification of the plaintiff.
6.The above orders continue until further order of the court.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KG
Associate to Judge Herron
6 FEBRUARY 2023
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