ZYX v JD
[2019] WADC 164
•26 NOVEMBER 2019
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 60; (1989) 168 CLR 79; (1989) 89 ALR 161
McMahon v Gould (1982) 7 ACLR 202
Moti v The Queen [2011] HCA 50; (2011) 245 CLR 456
Moubarak by his tutor Coorey v Holt [2019] NSWCA 102
Patrick Jebb as trustee for the Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [2019] WASC 121
Pennington v The State of Western Australia [2012] WASCA 85
R v Carroll (2002) 213 CLR 635; [2002] HCA 55
R v Davis (1995) 57 FCR 512
R v Edwards [2009] HCA 20
R v Millan [2018] WADC 110
R v Presser [1958] VR 45
R v Tait (1979) 46 FLR 386
Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47
Re AWB Ltd; Australian Securities and Investments Commission v Flugge (2008) 222 FLR 240
Re Bromfield; Ex Parte West Australian Newspapers Ltd (1991) 6 WAR 153
Re Her Honour Chief Judge Kennedy, Ex parte West Australian Newspaper Ltd [2006] WASCA 172
Re Hogan, Ex parte West Australian Newspapers Ltd [2009] WASCA 221
Reid v Howard (No 2) (1995) 184 CLR 1
Rinehart v Welker [2011] NSWCA 403
Rogers v The Queen (1994) 181 CLR 251
Scott v Scott [1913] AC 417
Seven Network Ltd v News Ltd (No 9) (2005) 148 FCR 1
State of New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638
Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53; (2018) 93 ALJR 1; (2018) 272 A Crim R 69
Walton v Gardiner (1993) 177 CLR 378
Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71
Williams v Spautz (1992) 174 CLR 509
XY v WA Country Health Service [No 2] [2016] WASC 245
SLEIGHT CJDC:
Background
The plaintiff commenced proceedings against the defendant claiming damages based on a child sexual abuse cause of action. The writ of summons was filed on 7 March 2019, endorsed with a statement of claim. The defendant is a very well-known person in the community, [suppressed].
The plaintiff pleads that in a period between 1968 (when the plaintiff was aged 12) to about mid-1973 (when the plaintiff was aged 17 years of age) the defendant sexually abused the plaintiff. The plaintiff's claim is for damages for psychiatric harm suffered as a result of an alleged breach of duty of care and/or battery or a series of batteries. The plaintiff also pleads that she suffered an aggravation of her injuries as a result of continuing sexual behaviour and harassment by the defendant between 1974 and 1991 (when the plaintiff was aged between 18 and 36). The plaintiff's claim for damages includes a claim for exemplary, punitive and/or aggravated damages.
The defendant entered a conditional appearance to the writ of summons and by an amended notice of motion dated 29 March 2019 seeks the following orders:
1.The writ of summons be set aside.
2.Alternatively, the writ of summons be stayed permanently.
3.Alternatively, the writ of summons be stayed until further order.
4.In any event, the file of the action be sealed until further order and not be accessible to anyone but the parties or their legal representatives without first obtaining the leave of a judge for such access.
5.For the purpose of publication and until further order of a judge, the actual names of the parties be suppressed and substituted with identifying names and symbols approved by court.
For the purpose of the defendant's applications, the application to set aside (strike out) the writ of summons was treated as synonymous with the application for a permanent stay.
In a defence filed in the proceedings the defendant has denied the alleged sexual abuse and the alleged continuing sexual behaviour and harassment.
Application to strike out or stay the action
The defendant's applications to strike out or to stay the action can be condensed down to three grounds:
1.The proceedings are oppressive because they prejudice the defendant's right to silence in the face of the possibility that the defendant will be charged with criminal offences out of the same alleged sexual abuse pleaded in the plaintiff's claim.
2.The proceedings are an abuse of process because the action is in substance, if not in form, a private prosecution by the plaintiff using the processes of the civil court to prosecute a criminal case; and in so doing, removing the defendant's protections (such as no adverse inferences arising from silence and the requirement of proof beyond reasonable doubt to sustain a conviction).
3.The defendant's conduct of his defence against such allegations has been irretrievably prejudiced by reasons of delay in the proceedings.
General principles on staying an action
It is a fundamental principle that a plaintiff is entitled to have his or her action tried in the ordinary course of the procedure and business of the court, subject to the inherent jurisdiction of a court to stay proceedings if the interests of justice so demand: Walton v Gardiner,[1] Jago v District Court of New South Wales[2] (Jago), Williams v Spautz.[3]
[1] Walton v Gardiner (1993) 177 CLR 378, 393.
[2] Jago v Disrict Court of New South Wales (1989) 168 CLR 23, 30 (Mason CJ), 74 (Gaudron J).
[3] Williams v Spautz (1992) 174 CLR 509, 520 (Mason CJ, Dawson, Toohey & McHugh JJ).
The onus of satisfying a court that an order should be made for a permanent stay lies squarely on the defendant: Williams v Spautz.[4]It should only be granted in exceptional circumstances: Jago;[5] Williams v Spautz;[6] Walton v Gardiner.[7]
[4] Williams v Spautz (529).
[5] Jago (30).
[6] Williams v Spautz (529).
[7] Walton v Gardiner (392).
Two circumstances where a permanent stay can be ordered relevant to the defendant's applications are:
(a)where the continuation of the proceedings would be an abuse of process;[8] and
(b)where, in the exercise of its discretion, a court is satisfied an order for a stay should be made because the defendant cannot receive a fair trial.[9]
[8] Jago (63).
[9] Walton v Gardiner (393); Batistatos v Roads and Traffic Authority of New South Wales(2006) 226 CLR 256; [2006] HCA 27 (Gleeson CJ, Gummow, Hayne & Crennan JJ); Jago (74).
The distinction between these two circumstances can be a fine one: Moubarak by his tutor Coorey v Holt[10] (Moubarak).
[10] Moubarak by his tutor Coorey v Holt [2019] NSWCA 102 [190] (Leeming JA).
Abuse of process
Although the categories of abuse of process remain open, abuse of process cases generally fall into three categories, namely where:
1.the court's proceedings are invoked for illegitimate purposes;
2.the use of the court procedure is unjustifiably oppressive to one of the parties; or
3.the use of the court procedure will bring the system of justice into disrepute: Rogers v The Queen.[11]
[11] Rogers v The Queen (1994) 181 CLR 251, 286 (McHugh J).
Proceedings may be oppressive where they are seriously and unfairly burdensome, prejudicial or damaging to the defendant.[12] It is a wider concept than the discretion to stay a proceeding because the accused cannot receive a fair trial: Moubarak.[13]
[12] Jago (74) (Gaudron J); Batistatos vRoads and Traffic Authority of New South Wales (267).
[13] Moubarak [182] – [197] (Leeming JA).
A determination that proceedings constitute an abuse of process is not a discretionary decision. Although some authorities speak of a discretion, that is only in the context that indicates no more than that the circumstances which constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse of process: R v Carroll;[14] Batistatos v Roads and Traffic Authority of New South Wales[15] (Batistatos). There can only be one correct answer to whether there is or is not an abuse of process. If there is an abuse of process, then an order for a stay should be made: Patrick Jebb as trustee for the Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd.[16]
[14] R v Carroll (2002) 213 CLR 635; [2002] HCA 55, 657 [73] (Gaudron and Gummow JJ).
[15] Batistatos (264), [7].
[16] Patrick Jebb as trustee for the Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [2019] WASC 121 [105] (Vaughan J).
When considering the question whether there is an abuse of process, it is relevant to consider the nature of the proceedings. This is because courts take a different approach to the provision of a stay for abuse of process in civil cases, as opposed to cases of a criminal or quasi-criminal nature. Generally, courts have been less inclined to grant a stay in civil proceedings compared with criminal proceedings: Jack Brabham Holdings v Minister for Industry, Technology and Commerce (Button)[17] (Jack Brabham Holdings). The reason for the different approach was explained by Gleeson CJ, Gummow, Hayne and Crennan JJ in Batistatos as follows:[18]
In Williams v Spautz, Mason CJ, Dawson, Toohey and McHugh JJ identified two fundamental policy considerations affecting abuse of process in criminal proceedings. Their Honours said:
The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by The State and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice.
These considerations are not present with the same force in civil litigation where the moving party is not the State enforcing the criminal law. Earlier, in Jago v District Court (NSW), Mason CJ had observed:
[T]he criteria for determining what amounts to injustice in a civil case will necessarily differ from those appropriate to answering the question in a criminal context.
(footnote omitted)
[17] Jack Brabham Holdings v Minister for Industry, Technology and Commerce (Button) (1988) 85 ALR 640, 641 (Kirby P).
[18] Batistatos (264) - (265), [8].
The difference in nature of civil proceedings to criminal proceedings was commented on by Deane J in Williams v Spautz in the following terms:[19]
Most civil proceedings are instituted in the hope that the defendant will settle before the action ever comes to trial or formal orders are made. Frequently, they are instituted for the predominant subjective purpose of obtaining an object which it would be beyond the power of the particular court to award in the particular proceedings. For example, the predominant subjective purpose of a plaintiff in a common law action for damages for wrongful dismissal may well be to obtain a settlement involving reinstatement in his or her former position under a contract for personal services of a type which a court would not enforce by specific performance or injunction.
[19] Williams v Spautz (543); see also discussion of these issues by Callinan J in Batistatos [211] - [217].
Whether the nature of the proceedings are criminal or civil is also raised in two other ways in these proceedings:
1.The defendant contends that the action is in the nature of a criminal proceeding or at least a hybrid of a criminal proceeding and is essentially a private prosecution which is an abuse of process as it is brought for the improper purpose of reducing the onus of proof to the balance of probabilities and removing the defendant's right to silence.
2.The intervener contends that the proceedings are criminal in nature and therefore the issue of the application for suppression should be approached in a similar manner to criminal proceedings.
I will deal with these issues later in the decision.
Application based on loss of right to silence
As mentioned above the defendant's application is to strike out the writ of summons, alternatively permanently stay the writ of summons, or stay it until further order of the court. Insofar as the application relies on grounds of protecting the right to silence, the appropriate order could only be to stay the action until further order of the court. If a prosecution is made sometime in the future then once this prosecution was concluded the defendant would no longer have any grounds for striking out or a permanent stay of claim on the basis of protecting his right of silence. I now turn to examining the merits of the defendant's application for a stay of the action based upon a claimed loss of rights to silence.
Evidence relating to the application
In support of the application the defendant swore an affidavit on 28 March 2019. In this affidavit the defendant deposes that in 1998 he was the subject of a criminal investigation, allegedly on the complaint of the plaintiff. On that occasion the defendant says he exercised his right to silence. He was released without charges being laid against him. [Suppressed]. He says that he wishes to maintain his right to silence in relation to potential criminal proceedings but to defend the claim of the plaintiff he will need to surrender his right to silence.
The defendant also relies on material contained in the affidavit of Ms Shannon Lee Hampton sworn on 8 May 2019 and filed by the interveners (Ms Hampton's affidavit). Annexed to Ms Hampton's affidavit are a number of newspaper reports suggesting that high ranking police officers overruled investigating officers and instructed them to release the defendant 'regardless of whether he confessed or not'.[20] Counsel for the defendant submits this demonstrates that the decision not to lay charges was finely balanced and could easily be resurrected if the defendant gave any incriminating evidence in the civil proceedings.
[20] Page 85 of Ms Hampton's Affidavit.
In reply to the defendant's application the plaintiff filed an affidavit of Mr Michael James Magazanik, the solicitor for the plaintiff, dated 31 May 2019, together with a supplementary affidavit of Mr Magazanik dated 9 June 2019. Mr Magazanik's affidavit of 31 May 2019 annexed police records given to the plaintiff of the history of the investigation by police into the allegations of sexual abuse made by the plaintiff against the defendant and the decision by the police not to prefer any charges. The affidavit also contains material indicating that since 1988 the plaintiff has sought counselling, psychological treatment and advice from health professionals in relation to the alleged abuse. All of the treating practitioners are available and capable of giving evidence. The material confirms that the plaintiff first made a complaint to the Child Abuse Unit on 7 May 1998 when she was aged 42. In broad terms the plaintiff complained at that time that she had been sexually abused by the defendant between the ages of 13 years to 34 years. It was alleged the abuse occurred in various places in the metropolitan area. The defendant was interviewed at the Child Abuse Unit on 17 November 1998. However, shortly after the interview commenced the defendant's solicitor attended and, after discussion with his solicitor, the defendant declined to continue with the interview. The police file was sent to the Office of the Director of Public Prosecutions (ODPP) for an assessment as to whether there was sufficient evidence for the defendant to be charged. In October 1999 a Crown Prosecutor, in a memorandum to the then Director of Public Prosecutions, Mr Robert Cock QC, recommended that there were no reasonable prospects of conviction. A copy of this memorandum was provided by the Crown Prosecutor to the plaintiff. The memorandum explained the reasons for this conclusion. According to the memorandum, for most of the allegations raised by the plaintiff, the law at the time of the alleged offending (which is the applicable law for a criminal prosecution) created serious impediments to the prosecution obtaining a conviction. The memorandum concluded that for the balance of matters there would not be a reasonable prospect of conviction of any offence without some acknowledgement of the offending from the defendant.
[Suppressed]
[Suppressed], the material contained in the affidavit of Mr Magazanik dated 31 May 2019 leads me to a finding that the results of the police investigation were sent to the ODPP and, as a result of the conclusions reached by the ODPP as set out above, proceedings were not commenced against the defendant.
The relevant law
The importance of a person's right to silence has been emphasised by the recent High Court decision in Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecution.[21] The plurality consisting of Kiefel CJ, Bell and Nettle JJ stated:[22]
[T]he common law right to silence is a fundament of the criminal justice system that applies at all stages of the process to all persons suspected of an offence, whether charged or not yet charged, and also at trial.
[21] Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53; (2018) 93 ALJR 1; (2018) 272 A Crim R 69 (Kiefel CJ, Bell & Nettle JJ).
[22] Tony Strickland (a pseudonym) v Commonwealth Director of Public [101].
In the course of submissions a number of cases which considered whether a civil case should be stayed in circumstances where there are existing criminal proceedings or the possibility of criminal proceedings were referred to by counsel for the defendant.
One such case was McMahon v Gould,[23] which concerned a civil action by a liquidator against a director of a company seeking recovery of money alleging fraud and breach of duty. Criminal proceedings had already been commenced against the director who applied for a stay of the civil action. Although the court accepted that it had a discretion to stay proceedings it chose not to exercise it in the factual circumstances of the case. Critical to the court's decision was the public interest requirement that persons in possession of property on behalf of others should be compelled to give information about their dealings with the property. Wootten J listed the following guidelines as relevant considerations in deciding whether civil proceedings should be stayed because of pending or possible criminal proceedings:
[23] McMahon v Gould (1982) 7 ACLR 202.
(a)Prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court.
(b)It is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds.
(c)The burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff's ordinary rights should be interfered with.
(d)Neither an accused nor the Crown are entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceeding.
(e)The court's task is one of the balancing of justice between the parties taking account of all relevant factors.
(f)Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors.
(g)One factor to take into account where there are pending or possible criminal proceedings is what is sometimes referred to as the accused's 'right of silence', and the reasons why that right, under the law as it stands, is a right of a defendant in a criminal proceeding.
(h)However, the so-called 'right of silence' does not extend to give such a defendant as a matter of right the same protection in contemporaneous civil proceedings. The plaintiff in a civil action is not debarred from pursuing action in accordance with the normal rules merely because to do so would, or might, result in the defendant, if he wished to defend the action, having to disclose, in resisting an application for summary judgment, in the pleading of his defence, or by way of discovery or otherwise, what his defence is likely to be in the criminal proceeding.
(i)The court should consider whether there is a real and not merely notional danger of injustice in the criminal proceeding.
(j)In this regard factors which may be relevant include:
•the possibility of publicity that might reach and influence jurors in the civil proceedings;
•the proximity of the criminal hearing;
•the possibility of miscarriage of justice eg by disclosure of a defence enabling the fabrication of evidence by prosecution witnesses, or interference with defence witnesses;
•the burden on the defendant of preparing for both sets of proceedings concurrently;
•whether the defendant has already disclosed his defence to the allegations;
•the conduct of the defendant, including his own prior invocation of civil process when it suited him.[24]
[24] McMahon (206) - (207) (Wootten J).
In Re AWB Ltd; Australian Securities and Investments Commission v Flugge[25] (AWB Ltd), it was accepted that the principles in McMahon v Gould should be refined in light of the High Court's decision in Reid v Howard (No 2)[26] (Reid). In Reid a majority of the High Court stated that the privilege of the right to silence that had been 'described as a fundamental… bulwark of liberty, is not simply a rule of evidence, but a basic and substantive common law right.'[27] AWB Ltd concerned civil penalty proceedings against officers of AWB Ltd. The background to the matter was that as a result of Iraq invading Kuwait, the United Nations imposed trade sanctions on Iraq which had the effect of depriving the country of foreign currency. In 1995, in order to alleviate some of the harsher consequences of this on the general Iraqi population, the United Nations established the Oil‑for‑Food Programme that permitted Iraq to sell oil, with the proceeds of sale being paid into an escrow account controlled by the United Nations. The proceeds of the account could be used by Iraq to purchase humanitarian goods such as wheat. A Royal Commission was held into an allegation that officers of AWB Ltd arranged payments to a party to secure wheat contracts pursuant to the program and included the payment of this fee in the contractual price to be reimbursed by the fund held in escrow by the United Nations. A Royal Commission recommended consideration of criminal prosecutions against the defendants. A task force comprising of the Australian Federal Police, the Australian Securities and Investments Commission (ASIC) and Victoria Police commenced an investigation with the intention of prosecuting the officials. In the meantime ASIC commenced proceedings for recovery of a civil penalty against each of the defendants to avoid the expiry of certain time limitations. The task force was not able to indicate to the defendants when criminal proceedings would be brought against them. Robson J found that the criminal proceedings were 'on the cards' and that the civil penalty proceedings ought to be stayed.
[25] Re AWB Ltd; Australian Securities and Investments Commission v Flugge (2008) 222 FLR 240 [19], [48].
[26] Reid v Howard (No 2) (1995) 184 CLR 1.
[27] Reid (11). See also [24] of this decision.
In Citation Resources Ltd v Landau,[28] the plaintiff sued the defendant for breach of director's duties and related relief. The nature of the claim was that Mr Landau established a bank account without authority from Citation into which Citation's money was banked and from which substantive payments were made for Mr Landau's benefit or the benefit of others without any authority from Citation. Mr Landau pleaded a protection against self-incrimination. The proceedings were at an early stage against the backdrop that an investigation was being conducted against Mr Landau by ASIC. The plaintiff, Citation, sought limited discovery which the defendant Mr Landau opposed on the grounds that disclosure of documents may add to his jeopardy in the investigation by ASIC. Further, Mr Landau sought an indefinite stay of the proceedings. An important part of Mr Landau's case was that an officer from ASIC had sworn an affidavit in April 2016 in support of an application for a travel restraint order against Mr Landau, stating that Mr Landau was 'potentially facing criminal action as a result of ASIC's investigation.'[29] Both applications were dismissed.[30] In relation to the application for limited discovery McKerracher J referred to the decision of Gemmell v LeRoi Homestyle Cookies Pty Ltd (in Liq)[31] wherein it was stated:[32]
To the extent that the appellants would be obliged to go outside their answers on examination in order to plead their defences, or in giving discovery, it cannot be baldly concluded that the appellants would not be at increased risk of jeopardy were the privileges not successfully invoked. It has been consistently said that, once it appears that a witness is at risk, then great latitude should be allowed to him in judging for himself the effect of any particular question. In the present matter, therefore, the appellants may successfully invoke the privilege against potential self-incrimination if there is a real and appreciable risk that a pleading or the giving of discovery might expose them to increased jeopardy of criminal prosecution, and may successfully invoke the privilege against exposure to a penalty if a pleading or the giving of discovery would tend to subject them to increased jeopardy of exposure to a penalty. To be clear, the concept of increased jeopardy has a role to play in this context.
(emphasis omitted)
[28] Citation Resources Ltd v Landau [2016] FCA 1114.
[29] Citation Resources Ltd v Landau [22].
[30] Citation Resources Ltd v Landau [1].
[31] Gemmell v LeRoi Homestyle Cookies Pty Ltd (in Liq) (2014) 46 VR 583.
[32] Citation Resources Ltd v Landau [28] (McKerracher J quoting Gemmell v LeRoi Homestyle Cookies Pty Ltd (in Liq) [112]).
McKerracher J applying this dictum concluded that in the circumstances of the case before him there was an increased jeopardy to the accused in having to give limited discovery.[33] Significantly, Mr Landau could claim privilege before answering any questions put to him by ASIC so that any answers he gave could not be used in criminal proceedings against him but by giving limited discovery the affidavit of discovery may contain implied or expressed admissions which were not so privileged. McKerracher J, although declining to make an order for discovery, indicated that he would not preclude further reconsideration depending on how the ASIC investigation unfolded.[34]
[33] Citation Resources Ltd v Landau [33].
[34] Citation Resources Ltd v Landau [35].
In relation to whether an order should be made for an indefinite stay, McKerracher J, after referring to McMahon v Gould, identified the issue as being whether there was sufficient evidence that it was 'on the cards' that Mr Landau would face criminal prosecution.[35] The expression 'on the cards' was accepted as meaning 'reasonably possible' or 'a reasonable possibility'.[36] McKerracher J went on to state:[37]
It is not the position that for a prosecution to be 'on the cards' a decision must be made to recommend prosecution or that a decision has already been made to send a brief to the relevant prosecuting authority.
[35] Citation Resources Ltd v Landau [42] (McKerracher J).
[36] Citation Resources Ltd v Landau [49] (McKerracher J).
[37] Citation Resources Ltd v Landau [49] (McKerracher J).
McKerracher J referred to a number of decisions where a stay had been ordered. In all but one of those cases there were active investigations on foot albeit final decisions had not been made to prosecute the defendant. McKerracher J held that a criminal prosecution against Mr Landau was not 'on the cards' for four reasons:[38]
(1)The previous reference to the potentiality was in the context of activities involving two other companies in addition to Citation.
(2)I am mindful that discovery sought by Citation has been refused by the ruling I have made in these reasons so that in the absence of any positive defence having been pleaded by Mr Landau, and in the absence of giving discovery, it is not apparent at this stage what additional risk he would face if these civil proceedings continue, at least, say, until the time of commencing trial. At that point, if criminal proceedings have commenced in relation to the pleaded matters, then a stay will be automatic. There may, at a later time, also be additional evidence as to the possibility of the specifically pleaded issues being the subject of a criminal prosecution.
(3)I am mindful that it is unlikely that Mr Landau would be exposed to significant further costs prior to trial, given the nature of his defence, which, in substance, puts Citation to proof.
(4)Finally, it seems to me that whatever decision has been taken in all these cases, a significant factor is the entitlement of Citation to brings its case to court. Should circumstances change, the question of a stay can be revisited, but at present I consider it to be premature.
[38] CitationResources Ltd v Landau [54] (McKerracher J).
The one case referred to by McKerracher J where there had not been a current investigation in place when the court held that there was a prosecution 'on the cards' was Australian Securities and Investments Commission v Craigside Co Ltd[39] (Craigside).That case concerned a civil proceeding by ASIC seeking a declaration that two of the defendants, a Mr Merity and a Mr Nedderman, had contravened sections of the Corporations Act 2001 (Cth) concerning obligations of disclosure. A contravention was an offence of strict liability so that on making the declaration the penalty provisions of the legislation came into effect. ASIC acknowledged that Mr Merity's conduct formed part of an ongoing investigation and that ASIC may seek to prosecute Mr Merity in the future. Mr Nedderman was not the subject of a current investigation by ASIC but ASIC refused to rule out the possibility of Mr Nedderman being prosecuted for contraventions of the Corporations Act in the future. In such circumstances Jagot J held that a prosecution against Mr Nedderman in respect of the subject matter of the proceedings was 'on the cards' stating as follows:[40]
ASIC has acknowledged that it is continuing to investigate Mr Merity's conduct. It is obvious that one reason for this continuing investigation is to enable ASIC to decide whether to prosecute Mr Merity. Mr Nedderman's conduct, as disclosed in this proceeding, is related to that of Mr Merity. Moreover, ASIC must already believe it has sufficient basis to establish to the civil standard of proof that Mr Nedderman has contravened a provision of the Corporations Act involving an offence of strict liability. In these circumstances, it is difficult to characterise a prosecution of Mr Nedderman in respect of the same subject matter as this proceeding as not "on the cards" merely because ASIC has said he is not the subject of the investigation at present.
[39] Australian Securities and Investments Commission v Craigside Co Ltd [2013] FCA 201.
[40] Craigside [21] (Jagot J).
Conclusion
In this matter I am not satisfied that a prosecution of the defendant in respect of the same subject matter as these proceedings is 'on the cards' for the following reasons:
1.On the evidence before me the investigation of the police against the defendant ceased in about 1999, approximately 20 years ago. There is no evidence before me that there has been any resurrection of the investigation. Nor is there any related investigation (for example, against a related individual as was the case in Craigside). Nor are the current civil proceedings commenced by a public official who has a role to play in investigating or prosecuting a person for a criminal offence.
2.The decision not to prosecute the defendant in 1999 was a decision reached after the police referred the matter to the ODPP. The decision not to prosecute the defendant was made partly for legal reasons based on the law at the time of the alleged offending and partly on evidentiary issues. In the absence of admissions from the defendant there is nothing before me to suggest that a decision of whether to charge the defendant would be revisited.
3.In the defence filed by the defendant in these proceedings the defendant has denied the allegations of sexual abuse and it is not clear how giving evidence at the trial will place him in jeopardy of resurrecting consideration of criminal charges against him.
On the basis of the above I conclude that, although there is a possibility that the defendant could be charged, that possibility is sufficiently remote and it is not 'on the cards'. In such circumstances I am not satisfied that an order for stay of the proceedings is in the interests of justice based on the defendant's concern of his loss of the right to silence due to the possibility that he could be charged sometime in the future with criminal charges arising out of the same subject matter as the civil proceedings.
Application based on illegitimate use of proceedings to prosecute the defendant
It is submitted on behalf of the defendant that the action has been commenced for improper purposes in that it is in substance, if not in form, a private prosecution by the plaintiff. It is submitted that the proceeding by being in the nature of a private prosecution creates an injustice and can be fairly described as an abuse of process because the defendant will be prosecuted in proceedings where he has no right to silence (and in fact his silence may lead to inferences being drawn against him) and the allegations against him need not be proved beyond reasonable doubt.
The defendant's counsel relies on a number of authorities to support the contention that the proceedings are in the nature of a private prosecution. However, in my opinion, the defendant's submissions rely upon selective passages from cases of different circumstances to the present case.
In Jago (referred to by the defendant's counsel) the High Court examined whether delay in criminal proceedings vitiated a conviction after trial. The central issue considered by the High Court was whether the legal principles within the civil jurisdiction in relation to a stay of proceedings due to delay were applicable to criminal proceedings. Mason CJ stated, what might be considered to be beyond controversy, as follows:[41]
However, for the purpose of applying the principles of abuse of process, the distinction to be drawn between criminal and civil proceedings is not a rigid and inflexible one. It is the nature of the proceedings, not their formal classification, that is important: Jack Brabham Holdings Pty Ltd v Minister for Industry, Technology and Commerce.
(footnote omitted)
[41] Jago (26) (Mason CJ).
Counsel for the defendant also relied on the case of Jack Brabham Holdings. That case concerned an action by the Minister responsible for the administration of the Customs Act 1901 (Cth) for the recovery of penalties under that Act. The Customs Act provides that proceedings for recovery of the penalty are governed by civil procedure. The defendant/appellant argued that the proceedings were criminal in nature because the prospects of establishing a case for a stay was significantly diminished if the case was in the nature of a civil case. The Supreme Court of New South Wales Court of Appeal found that the proceedings were hybrid proceedings and that for the purposes of the stay application were to be treated as akin to criminal proceedings because of their potential impact on the defendant and the other features of the proceedings which were similar to those found in criminal prosecutions. However, the proceedings were quite different to the present case. The distinguishing feature of the proceedings in Jack Brabham Holdings was that the proceedings were commenced by the Minister as the representative of the Commonwealth in order to enforce penalties provided for under the Customs Act.
Counsel for the defendant also relies upon the decision in Moubarak where Bell P stated as follows:[42]
… claims for civil liability for damages for sexual assault - questions of the standard of proof apart - bear a strong affinity with a criminal charge of sexual assault.
[42] Moubarak [106] (Bell P).
However, this passage was in the context of the court considering whether by analogy the test of whether a person was mentally fit to stand trial in a criminal matter had any relevance in a civil case of a defendant who was substantially mentally incapacitated due to severe dementia. I will discuss this case in greater detail later in this decision on the issue of whether a suppression order should be made. For now, it is sufficient to say Bell P went on to state that he thought there was a need for there to be coherence in common law values and, in my view, unsurprisingly found that the test in criminal cases by analogy had relevance in considering whether it would be unfair for civil proceedings to continue against a defendant suffering severe dementia.
It is not unusual for proceedings in a civil case to have the same subject matter as criminal proceedings. The fact that the civil proceedings concern a similar subject matter does not change the nature of the civil proceedings to something akin to a criminal proceeding. This court frequently deals with purely civil claims for personal injuries arising from motor vehicle accidents where there are parallel proceedings taken against the defendant by the police. If there were actual criminal proceedings in place then it might be appropriate to make a temporary stay of proceedings until the criminal proceedings were over. But in this matter there are no criminal proceedings in progress. The nature of the proceedings are not criminal in nature simply because they concern an alleged child sexual abuse.
Counsel for the defendant also relies on the fact that the plaintiff seeks exemplary (or punitive) damages. Exemplary damages are awarded to punish a defendant for conduct that has been a 'conscious wrongdoing in contumelious disregard of another's rights.'[43] The award of such damages is exceptional and such awards are made with restraint. Although exemplary damages are awarded by way of a punishment, that does not alter the fundamental nature of these proceedings which are for compensatory damages. In any event, the awarding of exemplary damages is recognised as a civil remedy available to a plaintiff in the appropriate case and are generally secondary to the claim for compensatory damages.
[43] Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71, 77 (Knox CJ).
I am satisfied that the correct approach is that these proceedings are to be viewed as civil in nature. In my opinion they are not criminal in nature nor a hybrid of criminal proceedings. The action is a private civil action by an individual seeking a civil remedy in damages. It is no different in substance to the many civil actions which are conducted in this court in relation to damages arising from a motor vehicle accident, where the defendant may also be guilty of criminal offences under the Road Traffic Act 1974 (WA) or the Criminal Code (WA). Accordingly, I reject the defendant's application for a stay of proceedings based upon the contention that the proceedings are being improperly used to prosecute a criminal offence.
Application based on delay
The plaintiff's application for damages for child sexual abuse is made possible by recent amendments to the Limitation Act 2005 (WA) (the Act). The amendments were a response to recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse. Similar, albeit not identical, reforms have been enacted in all other Australian States and Territories. By virtue of the amendments, a new provision in the form of s 6A of the Act provides that there is no limitation period for a child sexual abuse cause of action. A 'child sexual abuse cause of action' is defined as meaning 'a cause of action that relates, directly or indirectly, to a personal injury of the person to whom the cause of action accrues, where the injury results from the child sexual abuse of the person'.
Relevantly, s 6A(5) of the Act provides as follows (together with an attached note):
This section does not limit -
(a)any inherent, implied or statutory jurisdiction of the court: or
(b)any other powers of a court arising or derived from the common law or under any other Act (including any Commonwealth Act), rule of Law, practice noted or practice direction.
Note for this subsection:
For example, this section is not intended to limit a cause power to summarily dismiss or permanently stay in proceedings where the lapse of time as a burdensome effect on the defendant that it is associate is that a fair trial is not possible.
Delay by itself will not normally justify a stay.[44]However, delay in commencing proceedings may give rise to oppression so as to justify the court exercising its inherent jurisdiction to stay the action on grounds of an abuse of process or alternatively on the discretionary ground the defendant cannot receive a fair trial.[45] This is so even though the action may have been commenced within a statutory period of limitation. In circumstances where the claim is commenced within the statutory period of limitation, an application for a stay of the proceedings would cause attention to be directed to the burdensome effect on the defendant if the action was to proceed and whether he could receive a fair trial: Batistatos.[46]
[44] Jago; R v Davis (1995) 57 FCR 512, 520 (albeit that these cases concerned criminal proceedings).
[45] Batistatos (267); [15] - [16] (Gleeson CJ, Gummow, Hayne & Crennan JJ); [9] and [10] above of this decision.
[46] Batistatos (281); [69] (Gleeson CJ, Gummow, Hayne & Crennan JJ).
Delay can cause a disadvantage to a defendant due to the inherent problems that delay can cause to memory. Other forensic disadvantages may arise, such as the unavailability of witnesses and a loss of evidence. It is these forensic disadvantages that led to the High Court ruling in Longman v The Queen,[47] that juries in criminal trials should be given a warning against convicting a person after lengthy delays if forensic disadvantages have been created. However, it is of some significance that legislation has been enacted in some jurisdictions that abolishes a trial judge's obligation to give the Longman warning,[48] and others have provisions modifying the content of the direction.[49] This is not the case in Western Australia.
[47] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79; (1989) 89 ALR 161.
[48] See s 34CB of the Evidence Act 1929 (SA) which is set out with the clear intention of abolishing the Longman warning.
[49] See s 39(3)(b) of the Jury Directions Act 2015 (Vic) which prohibits judicial officers from saying or suggesting in any way, to the jury that, as a result of the forensic disadvantage caused by a delay it would be dangerous or unsafe to convict the accused; or the complainant's evidence should be scrutinised with great care.
There has been recognition that in criminal cases of sexual abuse there may be understandable and legitimate reasons why a complainant might not come forward and make a complaint. Section 36BD of the Evidence Act 1906 (WA) recognises that delays of a person complaining about sexual abuse can often occur for legitimate reasons. The section provides as follows:
Where on the trial of a person for a sexual offence or an offence under ch XXII of The Criminal Code (as enacted at any time) evidence is given or a question is asked of a witness which tends to suggest an absence of complaint in respect of the commission of the alleged offence by the complainant or to suggest delay by the complainant in making any such complaint, the judge shall -
(a)give a warning to the jury to the effect that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false; and
(b)inform the jury that there may be good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence.
An issue raised by the parties in these proceedings is the extent to which the delay by the plaintiff in commencing proceedings is explained by way of the limitation periods that existed prior to the introduction of s 6A of the Act. The defendant contends that the limitation periods that applied prior to the introduction of s 6A did not prevent the plaintiff taking action earlier. It is submitted by the defendant that because the plaintiff has pleaded continuing sexual conduct from 1974 until 1991, the plaintiff could have commenced proceedings (at least based on his alleged sexual conduct in 1991) at any time up until 1997 (on the basis of a time limitation of six years for a claim arising out of a breach of duty of care). However, the submission is in my opinion misconceived. The cause of action in this matter is a child sexual abuse cause of action. The period of the cause of action expired when the plaintiff turned 18 and any limitation period prior to the introduction of s 6A of the Act ran from the date she turned 18. Although the plaintiff pleads further sexual acts and further harassment occurred after she turned 18, these are not pleaded as a separate cause of action. They are pleaded as a circumstance giving rise to a claim for aggravated damages. A claim for aggravated damages is compensatory in nature, resulting from the circumstances and manner of wrongdoing: State of New South Wales v Ibbett.[50]Aggravated damages are additional compensation for the injured feelings of a plaintiff. It is a key requirement that the defendant's conduct increased the plaintiff's suffering: Carter v Walker.[51] However, there is a more fundamental flaw in any contention by the defendant that it is relevant the plaintiff had ample opportunity to commence proceedings prior to the introduction of s 6A of the Act. The need for an explanation of the delay is now largely removed because the plaintiff does not need to provide grounds for an extension to a limitation period but is entitled to commence an action as no limitation period now applies in respect to a child sexual abuse action. Instead the focus turns to the effect of the delay on the issue of the defendant receiving a fair trial. Batistatos;[52] Moubarak.[53] I say the reason for delay is now 'largely removed' because in rare cases it may still be relevant in combination with other reasons if it demonstrates a circumstance that makes it unjustifiably burdensome for the defendant to be required to defend the action: Connellan v Murphy[54] (Connellan).
[50] State of New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638, [31] 646 (Gleeson CJ, Gummow, Kirby, Heydon & Crennan JJ).
[51] Carter v Walker [2010] VSCA 340; (2010) 32 VR 1; see also Cunningham v Traynor [2016] WADC 168 [820] – [826].
[52] Batistatos (281); [69] (Gleeson CJ, Gummow, Hayne & Crennan JJ).
[53] Moubarak [75] (lead judgment of Bell P).
[54] Connellan v Murphy [2017] VSCA 116.
There are a number of authorities which have dealt with the issue of delay causing harm to the defendant so as to ignite a stay application.
In Batistatos the plaintiff was driving a vehicle that ran off the road in 1965. The plaintiff suffered a mental disability from birth. The statutory limitation period in New South Wales did not run against the plaintiff because he was always a person 'under a disability' within the meaning of the Limitation Act 1969 (NSW). The plaintiff came into the care of relatives in 1993 and shortly thereafter they arranged for him to see a solicitor and an action was commenced in 1994 (some 29 years after the accident). The action was based on a claim that the roadway was unsafe. The defendants claimed that they were disadvantaged and were unable to receive a fair trial because there had been a loss of records over the intervening period which created a serious disadvantage to them in defending the action. The disadvantage suffered by the defendants included an inability to obtain any police records of investigations relating to the accident (in the context that the plaintiff was unlikely to be able to lead any detailed evidence concerning the circumstances of the accident), a substantial loss of documents relevant to the design and construction of the roadway at the relevant time, a difficulty in identifying and locating any persons who had active involvement in road maintenance at about the time of the accident and an alteration to the roadway over a period of years (including a reconstruction of the roadway eliminating the bend where the accident occurred). The judge at first instance dismissed the application for a stay of the proceedings but this was reversed by the Supreme Court of New South Wales Court of Appeal principally on the grounds that the disadvantages suffered by the defendants as result of the delay meant that the defendants were unable to receive a fair trial. The High Court in upholding the decision of the New South Wales Court of Appeal was split 4:3, with the majority being Gleeson CJ, Gummow, Hayne and Crennan JJ. The closeness of the decision of the High Court demonstrates the difficulty of the evaluative process involved in deciding whether a defendant can receive a fair trial and the fact that different minds can easily reach a different conclusion. What is clear from the authorities is that a fair trial does not mean a perfect trial. That degree of fairness is unattainable. Trials are constantly held in circumstances in which for a variety of reasons (including delay) not all relevant evidence is before the court. That does not usually suggest that this prevents a fair trial: Holt v Wynter;[55] Batistatos;[56] Moubarak.[57] A fair trial may still occur even when witnesses have died: R v Edwards.[58]
[55] Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 143 [79], 142 (Priestley JA).
[56] Batistatos (304), [163] (Kirby J).
[57] Moubarak [89] - [92] (Bell P).
[58] R v Edwards [2009] HCA 20 [31] (Hayne, Heydon, Crennan, Kiefel & Bell JJ) (cited in Moubarak at [91]).
The issue of delay was also considered in the recent case of Moubarak which concerned a claim for damages for a child sexual abuse cause of action arising from alleged sexual assaults in 1973 to 1974 when the plaintiff was aged 12. Accordingly, the alleged assaults occurred some 42 to 43 years earlier at the time of the commencement of proceedings. The defendant at the time of the proceedings had advanced dementia and could not participate in the proceedings. The primary judge found that had the proceedings been a criminal prosecution, the court would most likely have found the defendant was not fit for trial. Nevertheless, the primary judge rejected an application for a permanent stay of proceedings on the basis that the accused could not receive a fair trial due to the defendant's dementia. As mentioned earlier in this decision, the primary judge rejected a submission that it was relevant in a civil case to take into account the well-known criteria of fitness to stand trial in criminal proceedings enunciated in R v Presser[59] (the Presser criteria). The Presser criteria include a capacity to give proper instructions to counsel, capacity to follow the procedure, capacity to understand the substantial effect of the evidence and a capacity to make a defence.
[59] R v Presser [1958] VR 45, 48 (Smith J).
The decision of the primary judge in Moubarak was overturned by the Court of Appeal and an order was made for a permanent stay. Bell P, in the lead judgment, stated that the primary judge was wrong to dismiss the relevance of the Presser criteria 'out of hand'.[60] His Honour (with whom Leeming JA and Emmett AJA agreed) concluded that due to the defendant's advanced dementia the defendant was unable to meet the Presser criteria and was unable to receive a fair trial in the civil proceedings.[61] Accordingly a permanent stay was appropriate.
[60] Moubarak [109] (Bell P).
[61] Moubarak [162] - [171] (Bell P, Leeming JA [182] and Emmett AJA [207] agreeing).
In reaching this conclusion, his Honour considered a number of other cases of child sexual abuse causes of action where a permanent stay application was made: Connellan, in which a stay was granted; Estate Judd v McKnight (No 4)[62] (Judd), in which a stay was refused; and Anderson v Council of Trinity Grammar School[63] (Anderson), in which a stay was also refused. In the cases of Judd and Anderson, applications for leave for appeal have been filed. I will briefly deal with the circumstances of each of the three cases although a more detailed analysis of the cases is contained in the judgment of Bell P in Moubarak.[64]
[62] Estate Judd v McKnight (No 4) [2018] NSWSC 1489.
[63] Anderson v Council of Trinity Grammar School [2018] NSWSC 1633.
[64] See Moubarak [113] – [148] (Bell P).
In Connellan the alleged sexual abuse occurred in 1967 or 1968 when the plaintiff was aged 6 to 7 years of age and the defendant 13 to 14 years of age. At the time the plaintiff was residing at the defendant's home for a period of 7 to 10 days. The Court of Appeal held that the defendant could not receive a fair trial due to a combination of reasons including:
1.The defendant was being asked at the age of 62 to defend an action based on his conduct over a short period of time when he was aged 13 years old.[65]
2.Neither side was in a position to properly investigate the relevant surrounding circumstances (this was exacerbated by the vagueness of the plaintiff's recollection).[66]
3.All principal witnesses who were adults at the time were deceased.[67]
4.The family home, where it was alleged the sexual assaults occurred, had been destroyed so that it was no longer possible to test the plaintiff's allegations by reference to the physical characteristics of the house.[68]
5.A proper assessment of causation and quantum of psychiatric conditions was precluded by the passage of time.[69]
[65] Connellan [57] (Priest, Beach & Kaye JJA).
[66] Connellan [57] (Priest, Beach & Kaye JJA).
[67] Connellan [65] (Priest, Beach & Kaye JJA).
[68] Connellan [59] (Priest, Beach & Kaye JJA).
[69] Connellan [58] (Priest, Beach & Kaye JJA).
Judd concerned three claims for damages in respect of sexual and/or indecent assaults alleged to have been committed by Mr Judd (deceased) in the period from 1978 to 1993. The proceedings were brought against his estate. Garling J dismissed the estate's application for a permanent stay stating that he was not satisfied 'that any hearing of the proceedings would be manifestly unfair to the Estate or would otherwise bring the administration of justice into disrepute among right‑thinking people'.[70] His Honour acknowledged the trial would be 'obviously a less than perfect trial', in light of Mr Judd's death.[71] There was evidence before Garling J that Mr Judd in his lifetime had largely accepted that he had in fact engaged in the conduct alleged. His claim was that it was consensual or, alternatively, he reasonably believed it to be lawful.[72]
[70] Judd [126] (Garling J).
[71] Judd [129] (Garling J).
[72] Judd [82] (Garling J).
In Anderson the plaintiff, a former student of Trinity Grammar School, alleged that he was sexually abused by a teacher employed by the school in 1974. More than 40 years later, in 2016, the plaintiff commenced proceedings against the defendant seeking damages. The proceedings were not against the offender but against the school council. The central issue in the proceedings was not whether the alleged assaults occurred (four of the assaults alleged were admitted to have occurred and the teacher was convicted and sentenced), but rather whether the defendant was vicariously liable for the conduct of the teacher and whether the defendant owed the plaintiff a non‑delegable duty of care. The focus of the defendant's application for a stay was that a key witness, the headmaster of the preparatory school, had died. The defendant also relied on its inability to locate documentary evidence for the relevant period. Rothman J dismissed the defendant's applications concluding that notwithstanding these difficulties 'the continued conduct of the trial could not be said to be unfair or an abuse of process.'[73]
[73] Anderson [125] (Rothman J).
Conclusion on the issue of delay
The delay in this matter has been quite considerable. The alleged child sexual abuse on which the cause of action relies ceased in 1973. The action was not commenced until March 2019, a period of approximately 36 years later. However, notwithstanding this delay I am not satisfied that the delay is seriously and unfairly burdensome, prejudicial or damaging to the defendant so that the proceedings are an abuse of process or that I should exercise a discretion to stay the proceedings on the basis that a fair trial is not possible. I reach these conclusions for the following reasons:
1.In accordance with the authorities cited earlier in this decision the plaintiff is entitled to have her claim heard subject to the inherent jurisdiction of the court to stay the proceedings.
2.The delay that has occurred in this matter is not unusual for persons who have suffered sexual abuse. This was recognised by the Royal Commission into the Institutional Response to Child Sexual of Abuse which stated as follows:[74]
When survivors are able to disclose their abuse, their first needs may be counselling and psychological care and the assistance provided through various support services. They might also wish to report to police and consider options for seeking justice through the criminal law. It cannot be assumed, or expected, that considering whether to commence civil litigation will be their first priority.
If the claimant does not know that they may have a claim or they face substantial psychological barriers in disclosing the essential elements of their claim, it makes little sense to talk of them 'sleeping' on their rights.
I find that this was the pattern which was followed in this case. I accept the uncontradicted evidence contained in the affidavit of Mr Magazanik dated 31 May 2019 that in 1998 the plaintiff sought counselling, psychological treatment and advice from health professionals. In May 1998 the plaintiff made a complaint to police (counsel for the defendant contends that the complaint was made to the police in 1990. This is based on hearsay evidence contained in affidavit material filed by the intervener. In any event, it makes no difference whether the complaint was made in 1990 or 1998). Due to an independent assessment of the case by the ODPP no criminal proceedings were commenced against the defendant. At the time of that decision the plaintiff was unable to commence a claim for damages for child sexual abuse as such a claim was statute barred. The proceedings were commenced shortly after the introduction of s 6A which came into effect on 1 July 2018.
3.It is relevant that Parliament by removing the statutory limitation period for child sexual abuse cases no longer accepts that delay in itself is sufficient reason for a claim to be barred. This is despite the fact that normally the longer the delay the more likely it is that evidence will be lost and memories fade.[75] The removal of the time limit for child sexual abuse claims recognises the unique inhibitors that exist for people who are the victims of child sexual abuse from coming forward with a complaint. The defendant's counsel has submitted that the defendant was entitled to assume that the matter of the allegations raised by the plaintiff were over.[76] However, the effect of the removal of the time limitation is that such an assumption can no longer be made.
4.Any inherent problems of memory loss or loss of evidence are a disadvantage that exist for both the plaintiff and the defendant.
5.The onus lies on the defendant to present material to the court to demonstrate that the case is exceptional[77] to invoke an order for a stay of the proceedings. The defendant is unable to point to any distinct forensic disadvantage other than the inherent problems that delay may cause. There is no evidence that the defendant suffers from dementia or any other health problem which creates such a disadvantage to him as to make the trial process unfair (as was the case in Moubarak). Nor has the defendant claimed that any significant evidence has been lost (as was the case in Batistatos, and Connellan). Nor has the defendant claimed that any key witness is deceased (as was the case in Connellan). Nor has the defendant identified the loss of any relevant records or documents (as was the case in Batistatos).
[74] Redress and Civil Litigation Report, 444.
[75] See McHugh JA in Longman (107) - (108).
[76] ts 24 of 10 June 2019.
[77] See [8] of this decision.
Suppression issues
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.
The suppression applications by the defendant are supported by two affidavits of the defendant dated 1 May 2019 and 13 May 2019.
In his affidavit of 1 May 2019 the defendant deposes as follows:
I am a prominent person in the community and the application of any part of the allegations herein prior to determination by the Court will inevitably result in severe prejudice to me personally and to my family; such prejudice being related to the very nature of the allegations.
I am a retired person of 76 years of age. I live with my wife and have an extended family all of whom will suffer prejudice if the allegations in the Statement of claim are published.
In his affidavit of 13 May 2019 the defendant annexed medical reports from a Dr [Suppressed] relating to the defendant and his wife. In relation to the defendant the report of Dr [Suppressed] states that the defendant has had:
Significant health issues in the last 12 months with the input of multiple specialists. I understand that there are court proceedings taking place currently involving [the defendant], and I feel if these were cast in the public eye, it could prove detrimental to [the defendant's] health given his current health issues.
Similar wording was used in relation to the report concerning the defendant's wife. No details were provided in the reports of the nature of 'the significant health issues' suffered by the defendant or his wife. Nor was there any indication on what basis the doctor reached his conclusion that publicity concerning the proceedings would be detrimental to the health of the defendant and his wife. The interveners objected to the admissibility of the affidavit but I conclude that it is admissible but can only be given minimal weight given the deficiencies I have listed.
The interveners rely on Ms Hampton's affidavit. The affidavit contains copies of extracts from a number of websites which contain commentary concerning the allegations made by the plaintiff and either naming or containing speculation that the defendant is the alleged perpetrator. Some of the material manifests a hostility towards the defendant and is offensive. [Suppressed].
Counsel for the defendant objected to portions of the affidavit of Ms Hampton being references to the defendant in websites [suppressed]. In broad terms these objections were based on the contention that the material contained mere assertions or speculation. In my view, however, the material is admissible and the objections go more to the issue as to what weight should be attached to the material on the issue of the extent the subject matter of the proceedings is already in the public domain.
The relevant law
A convenient starting point is to consider relevant provisions of the rules of the District Court and the Supreme Court.[78]
[78] The Rules of the Supreme Court 1971 have application in the District Court by virtue of s 87 of the District Court of Western Australia Act1969 which provides that where no special provision is contained in the rules of the court, the rules of court of the Supreme Court so far as applicable shall apply to the District Court.
Rule 71 of the District Court Rules 2005 (DCR) provides that any person is entitled on payment of a prescribed fee to search for, inspect and receive copies of court documents or information in a case as to the identity of the parties, the date of a hearing in a case, a copy of the writ and the statement of claim (if any) endorsed on the writ, an index of the documents filed and a copy of any judgment or order of the court.[79] Relevant to the current proceedings is that the entitlement does not extend to a statement of claim not endorsed on the writ (I will come back to this issue shortly). Notwithstanding this general entitlement a party may apply to the court for an order that prohibits or restricts access to or the publication or possession of, all or any part of the court record in respect of a case by a person or class of persons.[80] A person who is a non-party to a case may apply to the court for permission to inspect or obtain a copy of all or a part of the court record to which the entitlement does not exist. The court may grant such an application if satisfied that the applicant has 'sufficient cause' to inspect or obtain the record in question and that access to or possession of the record by the applicant would be lawful.[81]
[79] DCR r 71(1A).
[80] DCR r 71(3).
[81] DCR r 71(6) and r 71(7).
Order 67B r 5 of the Rules of the Supreme Court 1971 (WA) (RSC) gives the court the power of its own initiative or on the application of a party to restrict access to information or a record or other thing if it considers that the order is 'in the interests of justice'.
The construction of these rules should generally be construed so as to minimise any intrusion into the principle of open justice.
The principle of open justice is a fundamental principle of law,[82] with its primary objective being to promote public confidence in and respect for the administration of justice: Moti v The Queen;[83] Hogan v Hinch;[84] R v Tait;[85] Rinehart v Welker.[86]
[82] John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344 [18], 352 (Spielgman CJ).
[83] Moti v The Queen [2011] HCA 50; (2011) 245 CLR 456 [100], 494 (Heydon J).
[84] Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 [20] 530 (French CJ).
[85] R v Tait (1979) 46 FLR 386, 401 - 403 (Brennan, Deane & Gallop JJ).
[86] Rinehart v Welker [2011] NSWCA 403 [32] (Bathurst CJ & McColl JJA).
The principle of open justice was described in John Fairfax & Sons Ltd v Police Tribunal (NSW) McHugh JA (Glass JA agreeing) in the following terms:[87]
The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient.
(emphasis added)
[87] John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465, 476 - 477 (McHugh JA (Glass JA agreeing)) described in Reinhardt v Welker [29] Bathurst CJ & McColl JJ as the clearest statement of the principle.
There are a number of recognised exceptions to the principle of open justice. These include cases of wards of court and people suffering from mental disabilities where the court is sitting primarily to guard the interests of the ward or the person under a disability;[88] litigation as to a secret process where the effect of publicity would destroy the subject matter;[89] cases where disclosure in a public trial would defeat the whole object of the action (as in blackmail cases or cases involving police informers); to keep order in the court; and in certain circumstances of national security: Raybos Australia Pty Ltd v Jones (Raybos).[90]
[88] Scott v Scott [1913] AC 417, 437 (Lord Haldene LC); Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47, 54 (Kirby P).
[89] Scott v Scott (437) (Lord Haldene LC).
[90] Raybos (54) (Kirby P).
The entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public: John Fairfax Publications Pty Ltd v District Court of NSW;[91] R v Tait;[92] Raybos;[93] Rinehart v Welker.[94]Generally adverse effects in the form of embarrassment and stress caused by publicity has in the past not been recognised as being by itself sufficient to justify a suppression order, particularly in criminal proceedings: R v Davis;[95] Raybos;[96] R v Millan.[97]
[91] John Fairfax Publications Pty Ltd v District Court of New South Wales [20].
[92] R v Tait (401) - (403) (Brennan, Deane & Gallop JJ).
[93] Raybos (55) (Kirby P).
[94] Rinehart v Welker [32] (Bathurst CJ & McColl JJ).
[95] R v Davis (514).
[96] Raybos (61) (Samuels JA).
[97] R v Millan [2018] WADC 110.
The starting point for consideration of any question as to whether a suppression order should be made is that the presumption of open justice favours publication of the proceedings except in exceptional circumstances: Re Bromfield; Ex Parte West Australian Newspapers Ltd.[98] It has been described as a well-established and strong presumption: see Pennington v The State of Western Australia.[99] The occasions when a suppression order is made must be supported by cogent evidence. However, in certain cases a court can, in a practical sense, act on its own experience and draw appropriate inferences: ABC v D1;[100] XY v WA Country Health Service [No 2].[101] However, the paramount objective or purpose of courts is to do justice. The general rule as to publicity is only the means to an end and must always yield if it is necessary to do so in order that justice can be achieved: Scott v Scott;[102] Re Her Honour Chief Judge Kennedy; Ex parte West Australian Newspaper Ltd.[103]
[98] Re Bromfield; Ex Parte West Australian Newspapers Ltd (1991) 6 WAR 153, 181 (Malcolm CJ).
[99] Pennington v The State of Western Australia [2012] WASCA 85 (Martin CJ).
[100] ABC v D1 [2007] VSC 480 [71] (Forrest J).
[101] XY v WA Country Health Service [No 2] [2016] WASC 245 [19] (Pritchard J).
[102] Scott v Scott (438) (Lord Haldane LC).
[103] Re Her Honour Chief Judge Kennedy; Ex parte West Australian Newspaper Ltd [2006] WASCA 172 [38] (Steytler P).
What is necessary in order to achieve justice between the parties may vary from case to case. Mahoney JA (with whom Hope A-JA agreed) in John Fairfax Group Pty Ltd v Local Court of New South Wales described the concept of what is necessary in the following way:[104]
This leads to the consideration of what is meant by 'necessary to secure the proper administration of justice' in this context. The phrase does not mean that if the relevant order is not made, the proceedings will not be able to continue. Plainly they can. If the name of an informer is not hidden under a pseudonym, the proceedings will go on: at least, the instant proceeding will … The basis of the implication is that if the kind of order proposed is not made, the result will be - or at least will be assumed to be - that particular consequences will flow, that those consequences are unacceptable, and that therefore the power to make orders which will prevent them is to be implied as necessary to the proper function of the court.
(emphasis added)
[104] John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131, 161 (Mahoney JA, Hope A-JA agreeing).
In Re Hogan; Ex parte West Australian Newspapers Ltd[105] (Hogan), the Court of Appeal gave further emphasis that the rule of open justice was not absolute and had to be balanced against other considerations. Hogan concerned a prosecution in the Magistrates Court of two women charged with seven counts of assaulting children in their care in a childcare centre. The assaults were said to have been effected by tying the legs of the children together. The magistrate found that the tying of legs constituted an assault but, except for one charge against one accused, concluded that the prosecution was unable to prove the person responsible. The learned magistrate refused to release to the press a videotape containing images of children lying in cots and on mattresses and showing the manner in which some of the children's legs were tied. The magistrate also prohibited publication of the identity of the very young victims.
[105] Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221.
The magistrate's decisions were upheld by the Court of Appeal. McLure P emphasised that the rationale behind the fundamental principle of open justice should not be forgotten:[106]
The consequences of appealing to the principle of open justice are twofold. First, the principle is frequently relied on as a sufficient premise for direct application to facts outside the scope of the general rule. Secondly, there is a tendency to identify the principle of open justice as the ultimate object, divorced from the rationale for its existence. This is an error.
[106] Hogan [32] (McLure P).
Likewise Owen JA at [50] stated that:[107]
Free access to the courts by members of the public and by those who observe court proceedings in order to report them to a wider audience is a vital element of the system. Developments are occurring both in the way the media report cases and in access by members of the press to materials used in court proceedings. That is all as it should be. The principle of open justice reflects, protects and contributes to the fulfilment of this aspect of the public interest. But it would, in my view, be wrong to regard the principle of open justice as an end in itself. It is a means to an end; namely, to inform the public about the workings of the third arm of government and to ensure that courts and judges administer the justice system in a way that will maintain and foster its integrity, fairness and efficiency. Without in any way derogating from the proposition that exceptions to the principle of open justice are narrowly confined, each alleged infringement of the principle must be assessed according to its own facts and on its own merits and against the background of reasons for which the principle exists.
(emphasis added)
[107] Hogan [50] (Owen JA).
His Honour went on to stress, as did McLure P in her judgment, that there may be a myriad of factors that may be relevant.
The application of these principles concerning open justice may differ depending on whether the proceedings are civil or criminal in nature. This is because there are a number of important differences between civil proceedings and criminal proceedings:
(a)In a civil action there is no filter such as the independent ODPP to assess the case and decide whether there is a prima facie case based on the evidence available for consideration. A civil action may be commenced and taken to trial without the prior opportunity of an examination of its merits.
(b)A civil claim may be negotiated and completely settled on a without prejudice and confidential basis before proceedings are commenced without the public having any awareness that a claim has been made against a person. Likewise, after proceedings have been commenced an action can still be resolved confidentially between the parties. A criminal charge cannot be resolved privately and confidentially. A criminal allegation must be initiated in the public forum of the courts and can only be resolved by being withdrawn or adjudicated on by the courts. In Western Australia, criminal proceedings for an indictable offence before the superior courts can only be discontinued with the consent of the court.[108]
(c)The processes of the court in civil proceedings are highly geared to encourage the parties to negotiate, to participate in mediation and to attempt to settle the matter with provisions in the rules for such things to occur.[109] In the criminal process, however, although the court encourages discussion between the parties to explore resolving the matter either by a plea or a withdrawal of the charge, that encouragement is indirect and is not provided for in the processes as contained in the rules.
(d)A statement of claim does not have to be supported by any sworn statement, can be relatively easily amended and is more in the nature of an ambit claim. A pleading in a civil case does not amount to an affirmation of the truth of the facts alleged therein. The pleadings are primarily for the purpose of identifying the position of the plaintiff and the defendant in relation to the claim and thus identify the issues that the parties seek to be resolved by the court.
(e)The public interest in civil proceedings before the court is narrower than in criminal proceedings: Raybos.[110] In criminal proceedings the prosecuting authority represents the interests of the community in upholding the criminal law of the land: R v Tait.[111] As such the wider community has a vested interest in the process being subject to scrutiny. In civil proceedings the plaintiff represents no one else's interest except the plaintiff's interests. It is a private claim on behalf of the plaintiff. The public interest in the civil proceedings before the court is ensuring that the public institution is not misused or corrupted and cases are decided according to the law.
[108] Criminal Procedure Act 2004 (WA) s 87.
[109] See [15] earlier in this decision, see also r 35, r 35AA, r 40, r 41 and r 44 of the DCR.
[110] Raybos (58) and (59) (Kirby P).
[111] R v Tait (Brennan, Deane & Gallop JJ); see also Raybos (58) (Kirby P).
Raybos concerned an application to suppress the name of the defendant in proceedings for a declaration that the defendant, a solicitor, was in contempt of court in a civil action. Kirby P in his judgment classified the contempt application as being criminal in nature. Kirby P, although acknowledging that the principle of open justice which permitted the public scrutiny of proceedings was important in civil proceedings, emphasised that the principle had greater force in criminal proceedings. After referring to the importance of justice being done in public so that it may be discussed and criticised in public his Honour went on to say:[112]
These considerations, vital as they may be in civil litigation, are central to the administration of criminal justice. They apply equally to contempt proceedings which are of their nature criminal and in which must be reconciled, relevantly, the duties of lawyers to their clients and to the courts and to the due administration of justice.
[112] Raybos (59) (Kirby P).
A case involving a claim for damages for sexual assault where an order was made for the suppression of the identity of both the plaintiff and the defendants by the use of pseudonyms was ABC v D1. The Herald & Weekly Times Ltd made an application to vary an order permitting the identification of each of the defendants but not challenging the suppression of the identity of the plaintiff. The plaintiff opposed the application on the grounds that if the defendants were named she could be identified and this identification would create a real risk of psychological deterioration to a vulnerable plaintiff and could result in her not continuing with the claim. After recognising 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, Forrest J concluded as follows:[113]
In my view, the opinions of the general practitioner and the consultant psychiatrist lead to the conclusion that there is a real risk of psychological deterioration in the plaintiff if the defendants are identified. The plaintiff may ultimately be wrong as to whether she can be tracked down as a result of their identification. However, as I have previously said, this is not the test. The correct test is whether there is a real risk of the plaintiff's suffering a worsening of her psychological condition as a result of that identification, bearing in mind her pre‑existing condition. I am satisfied that there is such a risk.
I also accept that the material adduced supports the proposition that there is a real risk that she will not proceed with the proceeding in the event that the defendants are named. As I pointed out earlier, it is not a question of determining whether her belief is genuinely held or otherwise. It is a question of determining whether, given her psychological state, I am persuaded that there is a real risk that she will not prosecute the action if the defendants are named.
[113] ABC v D1 [81] - [82] (Forrest J).
In Re Hogan; Ex parte West Australian Newspapers Ltd[232] (Hogan), the Court of Appeal gave further emphasis that the rule of open justice was not absolute and had to be balanced against other considerations. Hogan concerned a prosecution in the Magistrates Court of two women charged with seven counts of assaulting children in their care in a childcare centre. The assaults were said to have been effected by tying the legs of the children together. The magistrate found that the tying of legs constituted an assault but, except for one charge against one accused, concluded that the prosecution was unable to prove the person responsible. The learned magistrate refused to release to the press a videotape containing images of children lying in cots and on mattresses and showing the manner in which some of the children's legs were tied. The magistrate also prohibited publication of the identity of the very young victims.
[232] Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221.
The magistrate's decisions were upheld by the Court of Appeal. McLure P emphasised that the rationale behind the fundamental principle of open justice should not be forgotten:[233]
The consequences of appealing to the principle of open justice are twofold. First, the principle is frequently relied on as a sufficient premise for direct application to facts outside the scope of the general rule. Secondly, there is a tendency to identify the principle of open justice as the ultimate object, divorced from the rationale for its existence. This is an error.
[233] Hogan [32] (McLure P).
Likewise Owen JA at [50] stated that:[234]
Free access to the courts by members of the public and by those who observe court proceedings in order to report them to a wider audience is a vital element of the system. Developments are occurring both in the way the media report cases and in access by members of the press to materials used in court proceedings. That is all as it should be. The principle of open justice reflects, protects and contributes to the fulfilment of this aspect of the public interest. But it would, in my view, be wrong to regard the principle of open justice as an end in itself. It is a means to an end; namely, to inform the public about the workings of the third arm of government and to ensure that courts and judges administer the justice system in a way that will maintain and foster its integrity, fairness and efficiency. Without in any way derogating from the proposition that exceptions to the principle of open justice are narrowly confined, each alleged infringement of the principle must be assessed according to its own facts and on its own merits and against the background of reasons for which the principle exists.
(emphasis added)
[234] Hogan [50] (Owen JA).
His Honour went on to stress, as did McLure P in her judgment, that there may be a myriad of factors that may be relevant.
The application of these principles concerning open justice may differ depending on whether the proceedings are civil or criminal in nature. This is because there are a number of important differences between civil proceedings and criminal proceedings:
(a)In a civil action there is no filter such as the independent ODPP to assess the case and decide whether there is a prima facie case based on the evidence available for consideration. A civil action may be commenced and taken to trial without the prior opportunity of an examination of its merits.
(b)A civil claim may be negotiated and completely settled on a without prejudice and confidential basis before proceedings are commenced without the public having any awareness that a claim has been made against a person. Likewise, after proceedings have been commenced an action can still be resolved confidentially between the parties. A criminal charge cannot be resolved privately and confidentially. A criminal allegation must be initiated in the public forum of the courts and can only be resolved by being withdrawn or adjudicated on by the courts. In Western Australia, criminal proceedings for an indictable offence before the superior courts can only be discontinued with the consent of the court.[235]
(c)The processes of the court in civil proceedings are highly geared to encourage the parties to negotiate, to participate in mediation and to attempt to settle the matter with provisions in the rules for such things to occur.[236] In the criminal process, however, although the court encourages discussion between the parties to explore resolving the matter either by a plea or a withdrawal of the charge, that encouragement is indirect and is not provided for in the processes as contained in the rules.
(d)A statement of claim does not have to be supported by any sworn statement, can be relatively easily amended and is more in the nature of an ambit claim. A pleading in a civil case does not amount to an affirmation of the truth of the facts alleged therein. The pleadings are primarily for the purpose of identifying the position of the plaintiff and the defendant in relation to the claim and thus identify the issues that the parties seek to be resolved by the court.
(e)The public interest in civil proceedings before the court is narrower than in criminal proceedings: Raybos.[237] In criminal proceedings the prosecuting authority represents the interests of the community in upholding the criminal law of the land: R v Tait.[238] As such the wider community has a vested interest in the process being subject to scrutiny. In civil proceedings the plaintiff represents no one else's interest except the plaintiff's interests. It is a private claim on behalf of the plaintiff. The public interest in the civil proceedings before the court is ensuring that the public institution is not misused or corrupted and cases are decided according to the law.
[235] Criminal Procedure Act 2004 (WA) s 87.
[236] See [15] earlier in this decision, see also r 35, r 35AA, r 40, r 41 and r 44 of the DCR.
[237] Raybos (58) and (59) (Kirby P).
[238] R v Tait (Brennan, Deane & Gallop JJ); see also Raybos (58) (Kirby P).
Raybos concerned an application to suppress the name of the defendant in proceedings for a declaration that the defendant, a solicitor, was in contempt of court in a civil action. Kirby P in his judgment classified the contempt application as being criminal in nature. Kirby P, although acknowledging that the principle of open justice which permitted the public scrutiny of proceedings was important in civil proceedings, emphasised that the principle had greater force in criminal proceedings. After referring to the importance of justice being done in public so that it may be discussed and criticised in public his Honour went on to say:[239]
These considerations, vital as they may be in civil litigation, are central to the administration of criminal justice. They apply equally to contempt proceedings which are of their nature criminal and in which must be reconciled, relevantly, the duties of lawyers to their clients and to the courts and to the due administration of justice.
[239] Raybos (59) (Kirby P).
A case involving a claim for damages for sexual assault where an order was made for the suppression of the identity of both the plaintiff and the defendants by the use of pseudonyms was ABC v D1. The Herald & Weekly Times Ltd made an application to vary an order permitting the identification of each of the defendants but not challenging the suppression of the identity of the plaintiff. The plaintiff opposed the application on the grounds that if the defendants were named she could be identified and this identification would create a real risk of psychological deterioration to a vulnerable plaintiff and could result in her not continuing with the claim. After recognising 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, Forrest J concluded as follows:[240]
In my view, the opinions of the general practitioner and the consultant psychiatrist lead to the conclusion that there is a real risk of psychological deterioration in the plaintiff if the defendants are identified. The plaintiff may ultimately be wrong as to whether she can be tracked down as a result of their identification. However, as I have previously said, this is not the test. The correct test is whether there is a real risk of the plaintiff's suffering a worsening of her psychological condition as a result of that identification, bearing in mind her pre‑existing condition. I am satisfied that there is such a risk.
I also accept that the material adduced supports the proposition that there is a real risk that she will not proceed with the proceeding in the event that the defendants are named. As I pointed out earlier, it is not a question of determining whether her belief is genuinely held or otherwise. It is a question of determining whether, given her psychological state, I am persuaded that there is a real risk that she will not prosecute the action if the defendants are named.
[240] ABC v D1 [81] - [82] (Forrest J).
Another civil case where the plaintiff's identity was suppressed was XY v WA Country Health Service [No 2]. It concerned injunctive relief sought by a doctor who had been suspended for not proceeding with a surgical termination of a pregnancy after the doctor came to realise that the patient was in a more advanced state of pregnancy than she had appreciated. Pritchard J made an order that the plaintiff's true identity be suppressed by the use of a pseudonym 'XY'. In doing so her Honour recognised an adverse reaction against the plaintiff and stated as one of the reasons for making the order as follows:[241]
I accept that there is a risk that the plaintiff may be the recipient of unwanted and potentially hostile attention from those quarters of our community who are opposed to the provision of medical services to terminate pregnancies and that such attention might dissuade her from continuing with this litigation. If that were to occur, that would undermine the administration of justice.
[241] XY v WA Country Health Service [No 2] [33]; see also [24] (Pritchard J).
In order to protect the identity of the plaintiff, Pritchard J also went on to make orders prohibiting the publication of any report of the commencement of the proceedings by the plaintiff; the hearing and documentation filed in support of the interlocutory injunction application, the writ and pleadings and other subsequent documents in the proceedings; and the hearing of interlocutory applications in the proceedings, 'to the extent only that publication might tend to identify patient, the plaintiff, or the name and address of the plaintiff.'[242] Her Honour also made an order that no other person other than the parties to the proceedings or their solicitors were to be permitted access to any document on the court file save by order of a judge.[243]
[242] XY v WA Country Health Service [No 2] [37] (Pritchard J).
[243] XY v WA Country Health Service [No 2] [37] (Pritchard J).
Whether the plaintiff's identity should remain anonymous
Neither the defendant nor the interveners oppose the anonymisation of the plaintiff's name by the use of initials in these proceedings.
It has been the administrative practice of the registry of the District Court of Western Australia to permit plaintiffs in cases involving child sexual abuse causes of action to anonymise the name of the plaintiff by using initials in all court documents filed subsequent to the writ of summons. This practice has not been formally recognised by any practice direction or rules of the court. As mentioned earlier in this decision the court has power (see O 67B r 5 of the RSC) on its own initiative or on the application of any person to make an order where it considers it is in the interests of justice to do so to restrict access to information or a record or any other thing. If the court makes such an order it must include reasons for the order and sufficient information to identify clearly the information, record or thing to which the order applies, the persons to whom access is restricted, any conditions attached to the order and the period during which the order applies.
There are strong reasons why a plaintiff's identity should not be disclosed in cases involving child sexual abuse causes of actions. The disclosure of the identity of a plaintiff in such an action is likely to provide a discouragement to plaintiffs commencing proceedings or continue proceedings due to embarrassment or distress. This public policy consideration is consistent with the approach taken in criminal proceedings. Section 36C(1) of the Evidence Act1906 (WA) relevantly provides as follows:
Subject to subsections (5) and (6) after a person is accused of a sexual offence no matter likely to lead members of the public to identify the complainant and, in the case of a complainant who is attending a school, no matter likely to lead members of the public to identify the school which the complainant attends, in relation to that accusation shall be published in a written publication available to the public or be broadcast, except by leave of the court which has or may have jurisdiction to try the person accused for that offence.
Similar legislative provisions exist in other jurisdictions demonstrating a clear policy of suppression of complainant's names in criminal proceedings relating to sexual offences: R v Davis.[244]
[244] R v Davis (514).
Given the public policy consideration I have identified above, I am satisfied that such an order should be made restricting the publication of the identity of the plaintiff and that in all subsequent court documents the plaintiff's identity is to be anonymised by the use of a pseudonym. In making this order I am conscious of the fact that neither party nor the interveners has argued against the identity of the plaintiff being suppressed. The suppression of the identity of the plaintiff should be until further order of the court. I will hear further from counsel as to the wording of the final formal orders that should be made. Currently the plaintiff's name is anonymised by using the plaintiff's initials. However, this may not be sufficient and consideration should be given to using a fully pseudonymised name.
I wish to make some brief observations concerning the practice of the registry of accepting documents, subsequent to a writ of summons, with plaintiffs' names anonymised using initials. This practice should not continue without a formal order from the court. Plaintiffs who wish to obtain this protection should make an application to the court for an order pursuant to O 67B r 5 of the RSC. The application should be made prior to the filing of the writ of summons or at the time of the filing of a writ of summons. It is preferable that the application be made prior to the filing of the writ of summons or at least an order sought immediately after the filing of the writ of summons prohibiting the publication of the plaintiff's name as otherwise a non-party would have an entitlement to a copy of the writ of summons under DCR r 71 and be able to identify the plaintiff.
Whether the defendant's entity should be anonymised
Both the plaintiff and the interveners oppose the defendant's entity being suppressed. In my opinion it is surprising that the plaintiff opposes the suppression of the defendant's name seeing that the plaintiff herself seeks that her name be suppressed by it being anonymised and also seeks to prohibit access by non-parties to the statement of claim (an issue I will deal with later in this decision). I ordinarily would have expected that the plaintiff would take a neutral position or, if anything, support the suppression of the defendant's name to reduce the chances of her identity being indirectly revealed, given the alleged long-standing association between the plaintiff and the defendant over the period of the alleged sexual conduct. This was certainly the approach taken by the plaintiff in ABC v D1.
The interveners oppose the suppression of the defendant's name based on the principles of open justice. It is further contended that in any event the subject matter of the current proceedings and the identification of the alleged perpetrator as the defendant is already in the public arena as demonstrated by the material contained in the affidavit of Ms Hampton. I reject this further contention. I believe it is significant that the prominent newspaper reporting of the allegations did not name the defendant. Although there were reports on websites where the defendant was named or there was speculation as to whether he was the alleged person, in my view these publications were some time ago and on the evidence before me I am not satisfied that the allegations against the defendant are already openly in the public arena so that a suppression order would be of no consequence or pointless.
If the plaintiff''s identity is suppressed by a process of anonymisation, but not the defendant's name, then an imbalance occurs. The critical issue that arises is: 'what are the consequences of the imbalance that would be created by the court rejecting the defendant's application that his name also be anonymised?'
I am satisfied on the evidence before me that if an order is not made the defendant, due to his reputation in the community, will 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 is likely to be some sections of the community hostile towards the defendant. The degree of this hostility is likely to be enhanced and disseminated more widely through social media than what might have occurred in times prior to the wide use of social media. I am satisfied the defendant is very concerned about this hostility as stated in his affidavit and as confirmed by the orders he has sought in these proceedings. The defendant's age is a relevant consideration when considering the extent to which he will be able to adequately cope with the pressure and embarrassment of this hostility. If the plaintiff's name is suppressed and the defendant's name is not suppressed, the plaintiff gains the advantage that she can pursue her personal claim of child sexual abuse without any concerns of suffering the embarrassment by her identity being published in the media. On the other hand, the defendant throughout the lengthy process leading up to a final judgment by the Court will be exposed to the embarrassment, hostility and loss of reputation as a result of allegations. It is only if and when there is a judgment that the defendant's denial will be potentially vindicated and the defendant will be relieved of the stress, embarrassment and loss of reputation arising from the plaintiff's allegations. This gives the plaintiff an unfair advantage in negotiations as the defendant may be overwhelmed by the length and continuing publicity the case will attract and seek to settle the action by a payment to the plaintiff regardless of the truth of the allegations. Given the role of negotiations in a civil action, in my opinion, the imbalance created is likely to undermine the administration of justice. I will return to this issue shortly.
Whether it is appropriate to make orders preventing non-parties to the action access to the statement of claim
The plaintiff seeks to prevent access by the general public to the statement of claim. As I mentioned earlier in this decision the statement of claim was endorsed on the writ of summons and, therefore, under r 71 of the DCR a non-party is entitled on payment of the prescribed fee to search for, inspect and receive copies of the writ of summons.
The question of access by non-parties raises two potential issues:
1.Counsel for the plaintiff submits that if non-parties have access to the statement of claim then they will have access to sensitive material. Presumably the concern is that this 'sensitive material' will cause embarrassment to the plaintiff. [245]
2.However, without non-parties having access to the statement of claim, any media reporting of the particulars contained in the endorsement of claim will result in the details of the alleged child sexual abuse being described in wide generic terms. Potentially this could be more damaging to the defendant's reputation and more embarrassing to him leading up to the trial. The general public may, in response to the reporting of the allegations using broad generic descriptions, speculate that the alleged child sexual abuse is at a more extreme or depraved level than has been alleged in the statement of claim. This is a relevant factor when considering the broad suppression order sought by the defendant.
[245] ts 20 of 10 June 2019.
The plaintiff contends that the statement of claim was filed endorsed on the writ of summons but does not identify the error, although I infer it was done inadvertently without consideration of the consequences flowing from non-parties having access to the content of the statement of claim.
The plaintiff's legal representatives seek to gain the protection of the prohibition of a non-party obtaining a copy of the statement of claim without an order of the court by amending the writ of summons so that it simply has an endorsement of claim. An amended writ of summons dated 10 May 2019 has been filed simply containing an endorsement. The plaintiff has also filed a substituted statement of claim dated 10 May 2019 (in identical terms to the statement of claim already filed endorsed on the originating writ of summons).
I conclude that by virtue of RSC O 21 and DCR O 48A, the plaintiff is entitled to file these substitute documents as of right and thus gain the benefit of DCR O 71 of preventing a non-party from gaining access to the statement of claim without an order of the court. Accordingly, in the absence of an application for an order seeking access to the statement of claim I conclude that I do not need to make any orders in relation to this issue. However, a consequence of only the endorsement of claim being available to non-parties is to potentially increase the imbalance that I have earlier identified arising between the parties in terms of the publicity that each party will be exposed to and increase the advantage to the plaintiff in the proceedings that I have identified if the defendant's name is not also suppressed or anonymised.
A further issue that arises in relation to the question of suppression of the statement of claim was that counsel for the interveners sought access to the statement of claim for two purposes.
First, it was contended that having been given leave to be heard on the applications for suppression, the interveners (or at least their counsel) should be given the opportunity to inspect the statement of claim so as to present full submissions in relation to the issue of suppression. This was opposed by both the plaintiff and the defendant. The plaintiff opposed the interveners having access to the statement of claim on the basis of the sensitive nature of the allegations. The defendant opposed the interveners having access to the statement of claim on the basis that giving such access would defeat the reasons for making a suppression order prior to hearing of the application. In my judgment it was not necessary for the particulars of the alleged child sexual abuse contained in the statement of claim to be revealed to the interveners in order for them to present their submissions in opposition to the defendant's applications. My opinion is that it was sufficient that the interveners were simply aware in broad terms that the plaintiff was making a claim for damages for alleged child sexual abuse.
The second purpose for which the interveners sought a copy of the statement of claim was on the basis that under the principles of open justice the media should be given access to such documents so as to enable them to fully report on the proceedings at trial. A distinction is drawn 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: Broad Construction Services (WA) Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers[246] (Broad Constructions Services (WA) Pty Ltd); Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 3).[247] Documents which fall into the category of being evidence and considered by the judge are subject to the principles of open justice. This is on the basis that access to the documentary evidence can be 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: Seven Network Ltd v News Ltd (No 9).[248] 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: Australian Securities and Investments Commission v Rich;[249] Broad Construction Services (WA) Pty Ltd.[250] The principle of open justice applies to the judicial process not to the court file: Broad Construction Services (WA) Pty Ltd.[251]In my opinion, given the nature of a statement of claim at this stage of the proceedings and the inherent sensitivities of particularisation of allegations of child sexual abuse, I conclude until further order of the court that the statement of claim should not be accessible to non-parties to the proceedings.
Whether a general suppression order should be made in relation to the proceedings until further order of the court
[246] Broad Construction Services (WA) Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers [2007] WASC 133.
[247] Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 3) [2002] FCA 609.
[248] Seven Network Ltd v News Ltd (No 9) (2005) 148 FCR 1 [27] (Sackville J); see also Broad Construction Services (WA) Pty Ltd [43] (Le Miere J).
[249] Australian Securities and Investments Commission v Rich [2001] NSWSC 496 [23] (Austin J).
[250] Broad Construction Services (WA) Pty Ltd [46] (Le Miere J).
[251] Broad Construction Services (WA) Pty Ltd [46] (Le Miere J).
The suppression order sought by the defendant is in the widest terms (including the sealing of the file). Counsel for the defendant submits that given the nature of the allegations of child sexual abuse, it is proper and in the interests of justice that all details of the case, and indeed the facts of the case itself, be properly suppressed at least until a final decision is made.[252] This submission is based upon the alleged harm to the reputation of the defendant who holds a prominent reputation in the community.
[252] Paragraph 2 of submissions dated 1 May 2019.
I make the preliminary observation that the order sought by the defendant to have the court file sealed is not practicable given that all files in civil actions in the District Court of Western Australia commenced after March 2016 are eCourt (that is, electronic) files. The orders sought by the defendant are based on the premise that the court file is a paper file. This is not so. I am not too sure what form of order would be required to isolate and create the level of suppression sought by the defendant with an eCourt file but I do not believe, in any event, that such extreme measures of suppression are appropriate.
If the only consideration as to whether a suppression order should be made was the damage to the defendant's reputation then, given the principles of open justice, I would conclude that no suppression order should be made. It is important as a part of the principle of open justice that the court demonstrates by its procedures that all persons are treated equally and that persons do not receive any preferential treatment because of their reputation, their standing in the community, their position of authority (such as a public official) or their wealth: R v Millan.[253] However, as I have identified earlier in this decision, there are 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 in my opinion undermines the administration of justice by giving the plaintiff an unfair advantage if the defendant's name is not also anonymised. It must be remembered that in most civil cases the suppression of the plaintiff's identity does not occur. To that extent cases such as this are unusual.
[253] R v Millan [2018] WADC 110 [16] and [17].
In order to do justice between the parties I conclude that the defendant should also have the benefit of his name being anonymised and there be a suppression order which prevents him from being identified in these proceedings. The suppression and anonymisation of the defendant's name should remain in place until final judgment is made by the court. I further believe that there ought to be a suppression in relation to the reporting of the proceedings which makes any mention linking the defendant with Australian Rules Football. Given the material contained in Ms Hampton's affidavit I am satisfied that mention of the defendant's connection with Australian Rules Football may lead to identification of the defendant and thus defeat the effect of the orders made.
In reaching the conclusion that the defendant's name should be anonymised I take into account that he is being sued as a private individual who is not a representative or employee of an institution. In my opinion there is a greater public interest in identifying defendants who are or were part of an institution, given the public interest in the response of institutions to child sexual abuse as confirmed by the creation of the Royal Commission into the Institutional Responses to Child Sexual Abuse.
I reject that there should be a wider suppression order which completely suppresses publication of any details concerning the action. I accept a submission of counsel for the interveners that there is a public interest in reporting that the courts are dealing with child sexual abuse civil causes of action without time limitations as recommended by the of the Royal Commission into the Institutional Responses to Child Sexual Abuse. The proceedings should take place in open court where they can be subject to scrutiny by those members of the public who attend the court and/or representatives of the media. The proceedings can still be reported on (subject to the prohibition against identifying the defendant until judgment and the prohibition against identifying the plaintiff) and therefore the processes of the court will still be subject to scrutiny. This is similar to the type of scrutiny that exists in many criminal trials where there are allegations of interfamilial sexual misconduct. In such cases the processes are subject to public scrutiny by being conducted in open court and reported on but the name of the alleged offender is often suppressed.
I propose the following orders be made to give effect to my decision in this matter on the suppression issues:
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 (including a prohibition against the publication which links the defendant to Australian Rules Football in any way).
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 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.
Other than the orders for suppression and anonymisation as indicated in the previous paragraph, the defendant's applications are dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CG
Associate to Chief Judge Sleight
26 NOVEMBER 2019
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