ZYX (pseudonym initials) v Cable [No 3] - [2023] WADC 10

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ZYX (pseudonym initials) v Cable [No 3]

Details

AGLC: ZYX (pseudonym initials) v Cable [No 3] [2023] WADC 10
Case: [2023] WADC 10
Decision Date: 7 FEBRUARY 2023

CaseChat Overview and Summary

In the case of ZYX (pseudonym initials) v Cable [No 3], the Full Court of the Federal Court of Australia was asked to determine the ongoing appropriateness of a suppression order in a child sexual abuse case. The proceedings involved a pseudonymised plaintiff, ZYX, who was a victim of child sexual abuse by the defendant, Cable. The case had progressed to trial, but Cable had ceased participating in the proceedings and was subsequently declared bankrupt. The court was required to decide whether it was still appropriate to continue anonymising Cable's name and prohibiting reporting of the proceedings in a way that would identify him.

The court considered the objectives of suppression orders in cases involving child sexual abuse, including the need to protect the privacy and welfare of child victims and to prevent further harm to them. It also considered the public interest in open justice and the need to balance these considerations with the rights of the defendant. The court examined the circumstances of this case, including the fact that Cable had ceased participating in the proceedings and was declared bankrupt, and whether these factors impacted the appropriateness of continuing the suppression order.

The Full Court determined that the suppression order should remain in place, with Cable's name continuing to be anonymised and reporting of the proceedings to identify him being prohibited. The court found that the objectives of the suppression order were still relevant and that the public interest in protecting the welfare of child victims and preventing further harm outweighed the public interest in open justice. The court also found that the fact that Cable had ceased participating in the proceedings and was declared bankrupt did not change the appropriateness of continuing the suppression order.

The Full Court made orders that the suppression order in place in the original proceedings remain in force, with Cable's name to continue to be anonymised and reporting of the proceedings to identify him to be prohibited. The court also ordered that the pseudonym used for ZYX in the proceedings remain in place.

Orders