ZYX -v- JD  WADC 164 (available on AUSTLII) is a decision published 26 November 2019 regarding a child sexual abuse claim (1968 – 1973) in which the defendant sought that the writ be set aside, stayed, and that the actual names of the parties be suppressed and substituted with identifying names and symbols approved by court.
At  onwards there was a consideration of the application based on delay, reviewing a number of other similar cases. However at  the court was not persuaded 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.
Neither the defendant nor the interveners opposed the anonymisation of the plaintiff’s name by the use of initials in these proceedings: . As to the defendant’s identity, the court said at :
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….
In summary, orders were made as follows at :
- The plaintiff’s name be anonymised and the plaintiff continue the proceedings under a pseudonym approved by the court.
- 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.
- All court documents filed in the proceedings shall henceforth refer to the plaintiff and the defendant by a pseudonym.
- 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 [suppressed].
- 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.
- 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.