Brown (a pseudonym) v ACT [2025] ACTSC 135

1. Jason Brown (a pseudonym) brings proceedings against the Australian Capital Territory seeking damages for alleged sexual assaults he says were committed against him when he was detained in a Territory institution. He was aged 13 years at the time he alleges those assaults occurred.

2. Before the Court are three applications brought by the Territory. The first is an application for leave to amend its defence. The basis for that application is that whereas, when the statement of claim was first served, it was not possible to identify the alleged assailant, and therefore not possible for the Territory to obtain instructions so as to plead anything beyond not admitting certain matters, the Territory has now identified the person it believes is the person the plaintiff identifies as the assailant, and has accordingly received further instructions reflected in the proposed amended defence. That application is not opposed. Leave to amend the defence should be granted.

3. The second is an application seeking orders pursuant to s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) in effect de-identifying any reference to the person the plaintiff alleges sexually assaulted him. That section provides that the Court may make such an order if the Court considers that, in the interests of the administration of justice, the name of a party or witness to the proceeding should not be published.

4. Plainly, the interests of the administration of justice are broad. The evidence in support of the application in the present case establishes, in short, that the person who has been identified by the plaintiff as the person who allegedly sexually assaulted him firmly denies the allegations, has no prior history of any conduct of that kind, and is in a position where his employment is very much dependent upon his not having such an allegation established against him. Furthermore, and perhaps most significantly, he is very apprehensive about the impact of any publicity of the allegations on his family, including his young children.

5. The plaintiff has been asked whether he intends to speak to police or make criminal allegations against that person. He has indicated that he does not and indeed that he does not consent to any disclosure of his allegations being made to police. I emphasise that it is not possible, and I do not purport at this stage of the proceedings, to form any judgment one way or the other as to where the merits lie. It is enough to observe the very significant impact it would have on the person accused of these allegations in the event that they were published and ultimately not proved.

6. While proceedings are ordinarily conducted openly without redaction of the name of a person accused of criminal conduct, the interests of the administration of justice can, in an exceptional case, comprehend the price at which justice might be obtained for any particular individual caught up in a proceeding through no decision of their own. The position, of course, may change if the allegations are proved against the person in question. However, for the time being, I am satisfied that it is in the interests of the administration of justice to anonymise that person.

7. The third application is an application for leave to issue subpoenas. Leave is required under s 79D of the Evidence (Miscellaneous Provisions) Act because the subpoenas might result in the production of protected confidences within the meaning of that Act. Section 79H(3) specifies a mandatory but non-exhaustive list of measures to which the Court must have regard in determining whether to grant leave. It is clear enough that an object of the legislation is to protect persons who claim to have been sexually assaulted from the disclosure of their protected confidences, as that is a matter that may dissuade victims from seeking counselling or other treatment. In the present case, however, the plaintiff has commenced the proceedings and claims damages for psychological injuries he says were caused by the alleged assault.

8. In those circumstances, the considerations specified in the statute are more easily outweighed by the importance for the defendant of having access to documents that will be relevant to the consideration of both liability and any likely damages. Furthermore, as noted by Ms Harrop on behalf of the defendant, at this stage all that is sought is leave to issue a subpoena. The legislation provides for a further step, which is for the Court to undertake a preliminary examination of the documents, and that is a further protection for the plaintiff.

Orders

9. For those reasons, I am satisfied that is appropriate to make the following orders: (1) I grant leave to the defendant pursuant to rr 502(1) and 507 of the Court Procedures Rules to amend its defence dated 30 September 2024 in the form of Annexure “A” to the affidavit of Lisa Gail Harrop affirmed on 26 February 2025. (2) I direct the defendant to file and serve its amended defence by 14 April 2025. (3) Pursuant to s 111 of the Evidence (Miscellaneous Provisions) Act, I forbid the publication of the name “[redacted]”, “[redacted]”, “[redacted]” or “[redacted]” in connection with these proceedings, or of any material likely to identify him or from which his identity might reasonably be worked out. (4) Until further order by the Court, and for the purposes of these proceedings, I direct that “[redacted]”, “[redacted]”, “[redacted]” or “[redacted]” be referred to (including in any document to be filed with the Court, and in any affidavit or statement to be relied upon in the Court, save for the jurat of any affidavit required to be sworn) only by the pseudonym John Martin. (5) I grant leave to the defendant under s 79D of the Evidence (Miscellaneous Provisions) Act and r 6601A of the Court Procedures Rules to issue subpoenas requiring the production of documents pertaining to the plaintiff for all periods during which he has received treatment or care from the recipients, such documents including or likely to include protected confidences, to the following entities or individuals: (a) NSW Education; (b) Glenn Chuck, Psychologist; (c) The Doctors at Lavington; (d) Albury-Wodonga Health; (e) Canberra Health Services; (f) Phoenix Wings Wellness; (g) JLS Psychology Services; (h) The Doctors at Thurgoona; and (i) Rehoboth Medical Centre. (6) Pursuant to s 79D(3)(a) of the Evidence (Miscellaneous Provisions) Act, I grant leave nunc pro tunc to compel the production of documents including or likely to include protected confidences by the ACT Community Services Directorate. (7) I defer for further consideration the balance of the defendant’s application seeking leave with respect to production of protected confidence evidence pursuant to s 79D of the Evidence (Miscellaneous Provisions) Act. (8) Stand the matter over before me at 10:00 am on 4 July 2025 in the civil list. (9) Direct the defendant to inform my associate as and when documents are produced in response to the subpoenas.

I certify that the preceding nine [9] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: