ZYX v JD

Case [2019] WADC 164 26 November 2019

Type to search within this case.

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   ZYX (pseudonym initials) -v- JD (pseudonym initials) [2019] WADC 164
CORAM:   SLEIGHT CJDC
HEARD:   10 JUNE 2019
DELIVERED          :   26 SEPTEMBER 2019
PUBLISHED           :   26 NOVEMBER 2019
FILE NO/S:   CIV 874 of 2019
BETWEEN:   ZYX (pseudonym initials)
Plaintiff
AND
JD (pseudonym initials)
Defendant
WEST AUSTRALIAN NEWSPAPERS LTD and CHANNEL 7 PERTH PTY LTD
Intervener

Catchwords:

Civil procedure - Application to set aside writ of summons - Stay application - Right to silence in potential criminal proceedings - Relevant principles - Whether criminal proceedings 'on the cards'

Civil procedure - Stay application - Delay - No limitation period - Relevant principles - Whether defendant can have a fair trial

Civil procedure - Suppression orders - Open justice principles in a civil case - Anonymisation of plaintiff's name in child sexual abuse cases - Consequences of anonymising plaintiff's name - Whether defendant's name should be anonymised - Whether full suppression order appropriate

Legislation:

District Court Rules 2005 (WA), r 71
Evidence Act 1906 (WA), s 36BD, s 36C
Limitation Act 2005 (WA), s 6A
Rules of the Supreme Court 1971 (WA), O 67B r 5

Result:

(a)     Application for striking out and stay dismissed.
(b)     Order that both plaintiff and defendant's name be anonymised.
(c)     Partial suppression order only to protect the identity of the parties until
         judgment.

Representation:

Counsel:

Plaintiff	:	Mr T J Hammond
Defendant	:	Mr M J McPhee
Intervener	:	Mr A McCarthy

Solicitors:

Plaintiff	:	Rightside Legal
Defendant	:	MJ McPhee Barrister And Solicitor
Intervener	:	West Australian Newspapers Ltd

Case(s) referred to in decision(s):

ABC v D1 [2007] VSC 480
Anderson v Council of Trinity Grammar School [2018] NSWSC 1633
Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 3) [2002] FCA 609
Australian Securities and Investments Commission v Craigside Co Ltd [2013] FCA 201
Australian Securities and Investments Commission v Rich [2001] NSWSC 496
Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256; [2006] HCA 27
Broad Construction Services (WA) Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers [2007] WASC 133
Carter v Walker [2010] VSCA 340
Citation Resources Ltd v Landau [2016] FCA 1114
Connellan v Murphy [2017] VSCA 116
Cunningham v Traynor [2016] WADC 168
Estate Judd v McKnight (No 4) [2018] NSWSC 1489
Gemmell v LeRoi Homestyle Cookies Pty Ltd (in Liq) (2014) 46 VR 583
Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506
Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 143
Jack Brabham Holdings v Minister for Industry, Technology and Commerce (Button) (1988) 85 ALR 640
John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465
John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131
John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344
Longman v The Queen [1989] HCA…

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 v JD

Details

AGLC: ZYX (pseudonym initials) v JD (pseudonym initials) [2019] WADC 164
Case: [2019] WADC 164
Decision Date: 26 NOVEMBER 2019

CaseChat Overview and Summary

The applicant, ZYX, filed an application to set aside a writ of summons against the respondent, JD, on the basis that the respondent was potentially subject to criminal proceedings. ZYX sought a stay of the proceedings, suppression orders, and an order for the anonymisation of the plaintiff's name, all to protect the respondent's right to silence in the potential criminal proceedings. The application was heard in the Federal Court of Australia.

The court had to decide whether the criminal proceedings were so imminent that they warranted a stay of the civil proceedings, whether the delay in filing the application would prejudice the respondent's ability to have a fair trial, and whether suppression orders and anonymisation of the plaintiff's name were appropriate in the circumstances. The court considered the relevant principles regarding the right to silence in potential criminal proceedings, the principles relevant to stay applications, the principles relevant to suppression orders, and the open justice principle in civil cases.

The court found that while there was a possibility of criminal proceedings, they were not imminent enough to warrant a stay of the civil proceedings. The court noted that the delay in filing the application did not prejudice the respondent's ability to have a fair trial as there was no limitation period for the offence in question. The court also found that suppression orders and the anonymisation of the plaintiff's name were appropriate in the circumstances to protect the respondent's right to silence. The court made orders for a suppression order and the anonymisation of the plaintiff's name in the proceedings.

Orders