Plaintiff v Defendant

1 This is an application by the defendant for what is commonly known as a 'pseudonym order', to apply with respect to all court documents, until further order. The application is opposed by the plaintiff. Prior to the issue of the proceeding, the plaintiff obtained, on an ex parte application determined 'on the papers', a pseudonym order substantially in the form sought by the defendant.[1]

2 In her statement of claim, the plaintiff brings a somewhat novel claim. She alleges that she was in a two year relationship with the defendant, who is married with children. She alleges that the defendant represented to her that the relationship was sexually monogamous, such representations having been made in order to induce the plaintiff to have sex with him without prophylactic protection. She alleged that, in fact, the defendant had sex with a number of different people,[2] of different genders, over the course of the relationship, including sex workers, and in some cases did not use prophylactic protection. Particulars of the identity of some of the alleged sexual partners were identified, along with the dates and location of particular occasions whereas the other participants were not identified save for their gender and occupation.

By reason of the matters referred to in the preceding paragraph the apparent consent of the Plaintiff to the sexual congress with the Defendant during the relationship was no actual consent.

In the premises the Defendant has -

(a) exposed the Plaintiff repeatedly to the risk of sexually transmitted disease;

(b) committed a trespass to the person of the Plaintiff; and

(c) assaulted the Plaintiff or alternatively committed assault and battery against the Plaintiff.

By reason of the foregoing the Plaintiff has suffered loss and damage including for nervous shock.

4 The plaintiff seeks damages, including exemplary, aggravated and punitive damages.

5 On 19 February 2019, the defendant filed and served what his counsel described as a 'holding defence'. On the same day, the solicitors for the defendant contacted the Court to arrange for the listing of this application. Given that the proceeding was on foot, I directed that notice of the application be given to the plaintiff.

6 The application was supported by an affidavit sworn by the solicitor for the defendant, Mr Alex Lewenberg, on information and belief. Some criticism was made of the defendant for not going on oath personally. The force of that criticism was lessened by the fact that the solicitors for the plaintiff had indicated that if the defendant swore an affidavit, he would be required to attend Court for crossexamination.

7 In his affidavit, Mr Lewenberg deposed, in summary, as follows:

(a) the defendant was served with the statement of claim on 24 December 2018;

(b) the defendant has instructed him, if the application for a pseudonym order is granted, he will file and serve an amended defence which would make certain admissions, would deny the allegations that he had numerous sexual partners other than his wife and the plaintiff, and would make other allegations concerning the plaintiff and the terms upon which the plaintiff and defendant conducted their relationship;

(c) the defendant's wife did not know about the matters alleged in the statement of claim, and some of the matters which would be pleaded in the proposed amended defence;

(d) the defendant believes that if his wife did learn of the matters raised in the statement of claim and the proposed amended defence, there is a real risk that his marriage would end;

(e) at one point in time the plaintiff threatened to send his wife a Facebook message about the relationship, and did so. However, the defendant intercepted the message and deleted it before she read the message;

(f) the defendant is a lawyer and businessman, and holds a number of public roles, including with nongovernment organisations associated with the local community of his country of origin. He has been publicly recognised for his achievements and contributions;

(g) he is actively involved in his faith community;

(h) he has recently been the target of extortion threats in relation to matters unrelated to this proceeding;

(i) the defendant has suffered immense stress and anxiety since he was served with the proceeding, and fears that he will be personally and publicly identified with the subject matter of the proceeding;

(j) the defendant's general practitioner has prescribed sleeping pills and antidepressant medication to assist with his stress and anxiety;

(k) the defendant has a longstanding cardiac condition, for which he receives ongoing treatment from a cardiologist. Recently, he was hospitalised with chest pain and vertigo while travelling overseas;

(l) he exhibited a report from the defendant's cardiologist, who has been told that the defendant is involved in a court proceeding, but not the nature of the proceeding. The report states that the defendant has hypertrophic cardiomyopathy, and that:

[The defendant] is currently on Bicor for this and I have increased the dose as he is suffering worsening symptoms. He is currently in the throes of a court case which is causing him immense stress and aggravating his cardiac condition. This is putting him at increased risk from cardiac event due to the stressors he is suffering;

(m) he believes that unless the defendant obtains a pseudonym order, he will be deterred from fully defending the proceeding, such reluctance having been reflected to date in his unwillingness to file the proposed amended defence, and his unwillingness to file an application to strike out the statement of claim.

8 The application was opposed by the plaintiff. The plaintiff relied upon an affidavit sworn by her solicitor, Mr Brett Tait. Some of the matters deposed to in that affidavit appear to go to the broader dispute between the parties, such as the nature of the relationship between the parties, matters raised in the proposed amended defence, and alleged anomalies in the nature of the academic qualifications claimed by the defendant, rather than the issues arising in this application. However, Mr Tait did depose that at one point in time, the plaintiff sent a message to the defendant's wife about her relationship with the defendant, and that the plaintiff believed that his wife read the message, as the letter was delivered to her Facebook message inbox without prior warning to the defendant.

9 Turning now to the relevant legal principles governing applications of this nature, there was common ground between the parties as to the balancing approach required to be undertaken by the Court. In particular:

(a) there is no doubt that the Court has the jurisdiction to make pseudonym orders, and that jurisdiction has not been overtaken or confined by the Open Courts Act 2013 (Vic);[3]

(b) the overarching purpose of making a pseudonym order is to prevent prejudice to the administration of justice;[4]

(c) there may be prejudice to the administration where: 'disclosure of the identity of the plaintiffs might be sufficient to deflect the plaintiffs from prosecuting their case; which is to say they might reasonably be deterred from bringing proceedings unless public disclosure of their identities could be prevented; [5] and

(d) nevertheless, the starting point is the principle of open justice, as stated by J Forrest J in ABC v D1 and Ors; Ex Parte v The Herald Sun & Weekly Times Ltd,[6] as follows:

The normal rule of our courts is that justice is administered in the court open to the public where the names of the parties are openly revealed and may be the subject of fair and accurate reports without fear or prosecution for contempt or action for defamation or other civil wrong.[7]

10 In that decision, J Forrest J summarised the principles to be applied in determining whether to grant a pseudonym order. The following statement has been recently endorsed by the Court of Appeal in Secretary, Department of Justice and Regulation v Zhong (No 2).[8]

First, that the principal rule is that judicial hearings should take place in open court: publicly and in open view, with no restriction on reporting. This is a fundamental precept underpinning the administration of justice.

Second, that in certain circumstances the administration of justice requires a qualification of the general rule. There will be circumstances where modifications of the general rule are necessarily made to ensure that the administration of justice is not frustrated. These exceptions are many and varied and cannot be prescriptively identified.

Third, that the test to be applied by the court in making a pseudonym order is ... whether it is necessary to do so in order not to prejudice the administration of justice.

Fourth, that a court, in determining whether to make a pseudonym order, is entitled to take into account the individual considerations affecting the person seeking the order and balance those against the principal rule of open justice in determining whether the administration of justice warrants the making of the order. Relevant to these individual considerations is whether there is a real risk of the party or witness suffering psychological harm as a result of publication of his or her name or the names of other parties. Also relevant is the real risk of a party not proceeding with an action in the event that he or she or another person is identified.

Fifth, 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 or defendants.

Sixth, that in determining whether to make such an order, a court is entitled to take into account the fact that there will still be a reporting of the proceeding and that the hearing itself will be conducted in open court, subject to the restrictions imposed by the pseudonym order.

Seventh, in determining whether it is necessary to make such an order, usually the proofs must be cogent and will not be satisfied by mere belief on the part of a party that the order is necessary. However, in certain cases a court can, in a practical sense, act on its own experience and draw appropriate inferences.

11 Other relevant factors to be taken into account include:

(a) the stage of the proceeding at which a pseudonym order is sought will affect how much weight is to be granted to the principle of open justice;[9]

(b) a defendant to a proceeding may be granted a pseudonym order, particularly if there is a risk that a defendant may be deterred or inhibited from properly defending the proceeding if he was publicly identified as the defendant;[10] and

(c) mere embarrassment, distress or invasion of privacy is insufficient to warrant the making of a pseudonym order.[11]

12 Counsel for the defendant submitted, in summary, as follows:

(a) he is surprised that the plaintiff is opposing this application, not being aware of any proceeding in this jurisdiction where such an application has been opposed by the other party, rather than the media, as is usually the case. Counsel queried whether the plaintiff seeks to achieve some strategic advantage in the litigation by opposing the application;

(b) the application is made at an early stage of the hearing, before any contested application or trial, such that the principle of open justice carries less force. This is particularly relevant because the defendant will, if granted a pseudonym order, apply to strike out the proceeding on the basis that it does not disclose a cause of action;

(c) the making of a pseudonym order will not restrict reporting on the proceeding;

(d) the proceeding makes allegations under the cloak of anonymity that the defendant has committed sexual assault and battery, and makes other scandalous allegations which have the potential to cause him great harm;

(e) the defendant is legitimately concerned that he will personally and publicly be identified given his public profile;

(f) the defendant is concerned that disclosure of his identity in the context of the subject matter of the proceeding could lead to a deterioration of his physical health, could result in him being the subject of extortion threats, could adversely affect his wife and children, and could irreparably affect his standing in the community; and

(g) this is not a case of 'mere embarrassment, distress or invasion of privacy'. The evidence is that the defendant has been and will be deterred from properly defending the proceeding without a pseudonym order, and there is evidence that this proceeding is causing him 'immense distress' and 'is aggravating his cardiac condition'. The fact that the defendant's cardiologist has prepared a report without behind told of the nature of the proceeding brought by the plaintiff merely reflects the anxiety the defendant feels about his identity being exposed.

13 Counsel for the plaintiff submitted that the application for a pseudonym order should fail because:

(a) the matters upon which the defendant relies are not proper bases for the exercise of the Court's jurisdiction to make a pseudonym order;

(b) there is no material before the Court upon which it can reasonably reach the conclusion that it is necessary to make the order; and

(c) the making of the order will not prevent the defendant's wife or other members of the defendant's personal or business network learning of his promiscuity.

14 Counsel for the plaintiff submitted that the defendant, in effect, 'invites the Court to join with him in keeping secret from his wife his sexual indiscretions', which is not a proper basis upon which the Court should act. Further, given the evidence of the plaintiff, there is some doubt about the defendant's assertion that his wife is unaware of his past relationship with the plaintiff.

In the event that this Honourable Court is satisfied that the refusal to grant the pseudonym order will put the Defendant at 'increased risk' of being exposed (to his wife), the adverse effects that may flow from this can plainly be categorised as 'embarrassment' to the Defendant, and a likely need for him to account for his moral transgressions - but any adverse effects do not fall within the category of consequence that attracts the exercise of the Court's discretion - embarrassment is not enough:

It is not sufficient that a public hearing will create embarrassment for some or all of those concerned. It must be shown that a public hearing is likely to lead, directly or indirectly, to a denial of justice.[12]

Further:

It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms ...

A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice.[13]

The Defendant's 'my wife will find out' ground has no basis in law, and must not be considered as a ground for the granting of a pseudonym order.

16 Counsel for the plaintiff submitted that this is merely a case involving embarrassing matters. If the Court were to consider mere embarrassment to be sufficient, then many litigants would be able to be granted pseudonym orders. The allegations could be seen as salacious, but there is no suggestion that the defendant has been involved in illegal activity.

17 Counsel for the plaintiff submitted that the fact that the defendant has been subject to extortion threats in the past in relation to an unrelated commercial matter is completely irrelevant to the current application. In any event, the pseudonym order does not prevent the disclosure of the defendant's sexual relationship with the plaintiff, or the other matters alleged in the statement of claim, to people known to the defendant, including his wife.

18 Counsel for the plaintiff submitted, in relation to the defendant's health condition, which he accepted was not a trivial matter, that the evidence relied upon by the defendant is rather thin, especially compared with the detailed evidence often advanced in support of applications of this nature. He submitted as follows:

In relation to the assertion that this proceeding is the cause of the Defendant's 'worsening symptoms':

(a) ... the Defendant's cardiologist, has no basis for drawing a causal connection between the 'worsening symptoms' and this proceeding, for he has not been informed of the nature of the case - there is no reason why, in a privileged environment, the Defendant was unable to provide his cardiologist with details as to the nature of this proceeding so that a more cogent assessment could be made;

(b) the Defendant was, until late last year, the subject of extortion threats - one can only assume that this would contribute to the Defendant's 'immense stress and anxiety', yet the cardiologist makes no mention of that ordeal;

(c) the Defendant has ensured that this Court is acutely aware of his many public achievements, and his business acumen - a person does not achieve these accolades without some significant degree of resilience and ability to deal with immense stress. '.

19 Finally, counsel submitted that it is fanciful for the Court to entertain a submission that the defendant would be deterred from fully defending the proceeding, including by refraining to issue a pleadings summons, stating:

(a) if the pleading summons had been brought, it may bring an end to the proceeding, thereby avoiding the need for the Defendant to continue in the throes of litigation;

(b) the summons requires only legal submissions by counsel with reference to the pleading on its face, and whether that document offends the criteria for a strike out set out under Rule 23.02; and

(c) no evidence would be admissible in relation to the proposed application, such that the risk of the Defendant's identity being revealed in the course of the making and hearing of the application would be remote.

20 The defendant should be granted a pseudonym order. First, there is cogent evidence that there is a real risk that the defendant will suffer physical and/or psychological harm should his identity be disclosed in the context of the allegations made in the statement of claim and the admissions and other allegations made in the proposed amended defence. Secondly, I agree that there is a real risk that the defendant will be deterred from properly defending this proceeding, and there is evidence that the defendant has been so deterred to date.

21 This is not a case of the Court protecting the defendant from the consequences of his allegedly morally questionable conduct, as suggested by the plaintiff, or a case where there is merely a risk of embarrassment and/or discomfort being caused to the defendant. Further, the fact that the conduct alleged by paragraphs 1 and 7 of the statement of claim is not illegal conduct does not alter the fact that a great many members of the community, particularly those with established families, regardless of their public profile or religious affiliation, would be stressed and distressed by allegations that not only had they breached their marital obligations, but had engaged in promiscuous behaviour, had multiple contacts with sex workers of different genders and/or gender orientation, and had conducted themselves without regard to the sexual health of their partners. That stress would no doubt be compounded exponentially by the fear that such allegations would be made public.

22 I do not accept that the evidence in support of the defendant's application lacks cogency. First, does a court really need evidence to reach the conclusions drawn in the above paragraph? It is well established that decision makers may apply their own general knowledge and experience as to community standards as to what is honest, what is reasonable, and what is obscene,[14] form opinions on commonplace mental and emotional states,[15] and form opinions as to the manner in which ordinary human nature might lead a particular individual to respond in a particular way to particular allegations or circumstances.[16]

23 Secondly, in the current application, the Court does have specific evidence of the impact of the making of the allegations to date, and, while the evidence is imperfect, it does establish that the defendant has an underlying health problem which renders him vulnerable to stress, and he is receiving treatment, including pharmaceutical treatment, for stress related symptoms. Of course, being involved in litigation, particularly in relation to highly personal matters, is stressful for all concerned. However, it is not difficult to infer that a person in the position of the defendant facing salacious allegations of this nature without the protection of anonymity would almost certainly be subject to immense stress and anxiety arising out of a fear of irreparable reputational damage. And those allegations are not confined to the allegations in the statement of claim: in the affidavit relied upon in opposition to the defendant's application, the plaintiff, again under cover of anonymity, made a number of allegations which were largely, if not completely irrelevant to the issues in the application, but, would, if publicly known, have the capacity to harm the reputation of the defendant in both his personal and professional networks. Further, while the purpose of pseudonym orders is not to give undue protection to those members of the community that have a high public profile, the fact that the defendant does have some standing in the community does increase the risk that this proceeding and the allegations in this proceeding would be more widely disseminated, and attract some media interest, than if the defendant had less of a profile.

24 Thirdly, I accept that the defendant has been, and will continue to be hampered from properly defending the proceeding should a pseudonym order not be made. As shown by the proposed amended defence, he has taken the view, no doubt advised by his legal representatives, that in order to properly defend this claim, and give proper notice to the plaintiff as to how he will meet the case brought against him, he will need to make certain admissions, press other denials, and make allegations against the plaintiff which, if proved, might undermine her claim, and if her identity were known, would quite possibly damage her reputation. However, to date, his fear of public disclosure has, quite reasonably, deterred him from doing so. Further, he wishes to make an application to strike out the statement of claim, again, no doubt, on the advice of his legal team. While it is correct that such an application will largely turn upon legal submissions, I accept that the mere appearance of the proceeding in the Court Daily List, when the defendant has a reasonably distinctive name, may be sufficient to publicise the existence of the proceeding and the nature of the allegations made against the defendant.

25 To some extent, the issue of whether the defendant will be impeded from properly defending the proceeding if his identity is not protected is related to the concern I expressed during the course of the hearing regarding whether, in the circumstances of this particular case, not granting a pseudonym order would infringe the principle of 'equality of arms'. While it cannot be the case that the mere fact that one party has the protection of a pseudonym order justifies the grant of a pseudonym order to another party, in the current case, the following observations of Coldrey J in Re: A proposed proceeding by a plaintiff as "P.P.P."[17] are apposite:

I am also conscious of the potential for forensic unfairness when a party is permitted to sue under the cloak of anonymity, particularly so when the allegations made may affect the reputation, professional or otherwise, of a defendant. In those cases to which I was referred, the defendant was an association. In this case, the defendant is an individual. In those circumstances, the dictates of fairness require, in my view, that at this initial stage of the proceedings the defendant may also be designated by initials.[18]

26 In the case before Coldrey J, the defendant was a psychiatrist defending a claim brought by a former patient. Such an approach to defendants in a medical negligence claim may not find favour today, save in exceptional circumstances. However, this is an unusual proceeding, falling well outside the mainstream of personal injury claims.

27 Fourthly, that this is a somewhat novel claim is illustrated by the fact that the defendant has instructed his legal representatives to bring an application to strike out the statement of claim on the basis that it discloses no cause of action. No application has been made, and the basis of the application has not been articulated beyond what has been said above. However, it may well be that such an application is of more consequence than a mere pleadings summons, and, if successful, could result in this action being brought to an end. It seems to me that it would be unfair for the defendant to defend a proceeding making allegations of the nature made in the statement of claim (and the affidavit relied upon in opposition to the application) without the protection of a pseudonym order, if it ultimately turns out that the plaintiff has no cause of action recognisable at law.

28 Finally, while this was not the subject of any submissions, it seems to me that, given some of the factual matters relied upon by the plaintiff's solicitor in his affidavit in opposition to the application, there is a real risk that if the identity of the defendant was available from the court file, a member of the public, or member of the media could identify the plaintiff from other information on the court file. If the plaintiff's allegation that the defendant is a coproprietor of a property also owned by her is correct, it would be a relatively simple matter for searches to be conducted of publicly available information, for a modest fee, which would reveal the identity of the plaintiff to someone conducting such a search. Accordingly, while I am not privy to the material relied upon by the plaintiff in support of her application for a pseudonym order, I can presume that it was sought, and made, on the basis that disclosure of her identity would carry with it real risk of harm, and/or deter her from prosecuting this proceeding. It would be unfortunate indeed if the plaintiff's identity were to be able to be ascertained by reason of her successful resistance of the defendant's application, combined with evidence adduced by her being freely available on the court file.

29 Accordingly, I will make the orders sought by the defendant. Further, given there are no restrictions on access to the court file beyond the orders sought by the defendant, I consider that I should also order that the names of the persons in sub-paragraphs (ii), (iii), (iv) and (v) of the particulars to paragraph 7 of the statement of claim be redacted or otherwise anonymised so as to minimise the risk that either the plaintiff or the defendant could be identifiable from the court file.

[1] Order of McMillan J made 12 November 2018.

[2] The particulars to paragraph 7 of the statement of claim identify fifteen different people, and include eleven 'occasions' over a period of about eight months.

[3] Hunter v AFL & Anor [2015] VSC 112 [9].

[4] XYZ v State of Victoria & Anor [2016] VSC 339 [18].

[5] BK v ADB [2003] VSC 129 [10].

[6] [2007] VSC 480.

[8] [2017] VSCA 19, [4].

[9] Anon 2 v XYZ [2008] VSC 466 [40]-[41].

[11] Secretary, Department of Justice and Regulation v Zhong (No 2) [2017] VSCA 19 [7].

[12] R v Chief Registrar of Friendly Societies (ex parte) New Cross Building Society [1984] QB 227 [235].

[13] John Fairfax Group Pty Ltd (receivers and managers apptd) & Anor v Local Court of NSW & Ors (1991) 26 NSWLR 131, 142-143.

[14] JD Heydon, Cross on Evidence (LexisNexis Buttersworths, 9th Australian ed, 2013) [3250].

[17] Unreported (Supreme Court of Victoria, Coldrey J, 27 August 1993).