Pseudonym order granted to prominent lawyer and pillar of society accused of jilting his extra mural lover … Salacious claims … Embarrassment … Trespass to the body … Battery … Nervous shock … Jane Doe v XYZ in the Vic Supremes … Janek Drevikovsky reports
It involves nervous shock, trespass, battery, sex, hookers, heart attacks and reputations on-the-line.
The potential for enlightened discussion is enormous, except that Associate Justice Melissa Daly of the Vic Supreme has suppressed the names of everyone involved.
So here we are stuck with Jane Doe v XYZ.
Doe had a two-year long relationship with the defendant, a chap who is a successful lawyer and business person, active in a number of NGOs – an all-round adornment to society.
The pair’s relationship was meant to be monogamous, the plaintiff says. She claims the defendant promised he wasn’t seeing anyone else, and on that basis, she agreed to have sex with him without protection.
But, so the plaintiff claims, the defendant was lying. He was in fact already married (with children) and was also seeing at least 15 other people, of various genders, at the same time as the plaintiff.
Some of his partners were sex workers, it’s claimed, and he sometimes failed to use protection in his trysts.
Given the alleged deception, the plaintiff says her consent to sex with the defendant was invalid. She’s is suing the defendant for trespass to her body, assault and battery, and for exposing her to the risk of STIs. She claims damages for nervous shock.
No formal defence has yet been filed. But the defendant’s lawyer told the court his client will deny he had sexual partners other than his wife and the plaintiff.
Early in the proceedings, the plaintiff sought and was granted a pseudonym order. Her application was decided ex parte, and apparently without much fuss. The defendant wanted a similar order, arguing he would give up on his defence rather than be publicly identified.
XYZ explained that if his name was published in connection to the claim, harm would be done to his professional standing and his role in his “faith community”.
He also said his wife remained ignorant of the claims against him, and that there was a real risk the marriage would end if she were to find out.
He mentioned that the plaintiff had once sent his wife a Facebook message about the affair, but that he had “intercepted” and deleted it.
The defendant also complained of the effect his involvement in the proceedings is having on his health.
He said he was suffering immense anxiety and a heart condition which is has been worsened by the court case, according to a cardiologist’s report. He was also claimed he has been subject to unrelated extortion threats.
Jane Doe resisted the defendant’s application for a pseudonym order. She argued the defendant was in effect inviting “the court to join with him in keeping secret from his wife his sexual indiscretions”.
She submitted the court has no power to make a pseudonym order simply to prevent embarrassment, and that the defendant’s wife and community would find out eventually in any case.
The plaintiff also said the evidence of the defendant’s poor health was “thin”. The cardiologist’s report hadn’t shown a causal relationship between the proceedings and the defendant’s worsening condition; in fact, the unrelated extortion threats may well have been responsible.
Counsel for XYZ was surprised the plaintiff was opposing the application, saying he was not 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”.
He mused the plaintiff was seeking some kind of “strategic advantage”, presumably the defendant giving up on his defence.
Daly Ass J was convinced by the defendant’s arguments. The test for making a pseudonym order, she said, was found in Department of Justice and Regulation v Zhong (No 2).
The question is whether it is necessary to grant a pseudonym order to avoid prejudice to the administration of justice. Relevant considerations include whether the applicant will suffer psychological or physical harm if their name is published.
Daly accepted the defendant’s evidence as to his health, and agreed that his standing in the community would give him reason for high levels of stress, especially considering the “salacious” nature of the claims.
HH also cited Anon. 2 v XYZ, where the court found a pseudonym order must be granted if there is a risk a defendant may be deterred from properly defending the proceeding if publicly identified.
Again, the associate justice found in the defendant’s favour, saying he had already been deterred from carrying on the proceedings out of fear of being identified. She said he had so far held off on filing a defence because he was worried the proceedings would then be publicly listed, with his name attached.
She found it would be unfair for the defendant to give up, because the plaintiff’s claim was novel and there was a chance she may not even have a good action at law.
Finally, she thought the pseudonym order should be granted for “equality of arms”. That is, the plaintiff’s name was suppressed, so to some extent, the defendant’s should be as well.
All of which meant the pseudonym order was made, and we’ll have to wait to see if the shroud of anonymity is ultimately lifted so that everyone’s hunches are confirmed.