Suing by pseudonym: is the bar too high?

Civil courts around Australia frequently grapple with the issue of open justice and the need to be neither inflexible nor absolute in its application of this fundamental principle.

Derogation of the principle of open justice occurs frequently – particularly in civil claims such as those seen in succession law, discrimination cases and personal injury claims. The principle of open justice is fundamental to our judicial system. After all, it has been said that justice must not just be done; it must be seen to be done.¹

The open justice principle is said to improve our system of justice and uphold the rule of law through imposing an obligation on all stakeholders in court proceedings to ensure they hold themselves to the highest standards. Being subject to public scrutiny is said to encourage all – witnesses, parties, lawyers and even judges – to uphold the highest possible standards.

Superior courts such as the Supreme Court have an inherent jurisdiction to limit the extent to which the business of the court is open to the public. This can be found under section 8 of the Supreme Court of Queensland Act 1981 (Qld). This provision, of course, is subject to the proviso that any derogation from the open justice principle must be in the public interest or in the interest of justice.

The principles were conveniently summarised by Justice Bowskill (as she then was) in Attorney General for the State of Queensland v Fardon², where she said:³

“The Court has an express power under s 8 of the Supreme Court of Queensland Act 1991 (Qld) to limit the extent to which the business of the Court is open to the public provided that the public interest or the interests of justice require it. As the Court of Appeal said in R v McGrath [2002] 1 Qd R 520, after referring to the earlier equivalent of this power (at [8]):

‘This is a confirmation and perhaps an extension of the common law power of the court to prohibit publication of proceedings where the court considers this necessary for the purpose of administering justice. The power includes the power to sit in camera if justice cannot otherwise be attained. However, the court has always regarded as fundamental the requirement that judicial proceedings be conducted in open court where members of the public may be present. The power of the court to exclude the public and limit publication of its proceedings is undoubted, but as McPherson J (as he then was) observed in Ex Parte The Queensland Law Society Incorporated:

‘… the power of the court under general law to prohibit publication of proceedings conducted in open court has been recognised and does exist as an aspect of the inherent power. That does not mean that it is an unlimited power. The only inherent power that a court possesses is power to regulate its own proceedings for the purpose of administering justice.’”

It has been said that any deviation from the open justice principle requires evidence that the accommodation is reasonably necessary rather than there simply being a belief that it is appropriate. In John Fairfax and Sons Pty Ltd v The Police Tribunal of New South Wales⁴, McHugh JA observed that:

“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… 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; 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”⁵

But in the digital world we live in, one in which stories can go viral very quickly and have an enormous personal impact on a litigant, is the bar for suppression too high? Does our system prioritise the playtime of keyboard warriors over the dignity and reputation of litigants? And will the public and often vitriolic online attacks of litigants dissuade deserving plaintiffs from pursuing their legal rights simply to avoid personal discomfort? Does the system sometimes result in justice not being done because of the open justice principle?

In the Queensland Supreme Court, the considerations in determining whether to make non-publication orders regarding a party’s name were conveniently set out in the judgement of Fitzgerald P and Lee J in J v L & A Services Pty Ltd (No. 2)⁶ in which their Honours summarised the principles to be applied:⁷

1. Although there is a public interest in avoiding or minimising disadvantages to private citizens from public activities, paramount public interests in the due administration of justice, freedom of speech, a free media and an open society require that court proceedings be open to the public and able to be reported and discussed publicly.
2. The public may be excluded and publicity prohibited when public access or publicity would frustrate the purpose of a court proceeding by preventing the effective enforcement of some substantive law and depriving the court’s decision of practical utility. National security provides a further special, broadly analogous exception to the requirement of open justice because of its fundamental importance to the preservation of a democratic society based on the rule of law.
3. The permitted exceptions to the requirement of open justice are not based upon the premise that parties would be reasonably deterred from bringing court proceedings by an apprehension that public access or publicity would deprive the proceeding of practical utility, but upon the actual loss of utility which would occur, and the exceptions do not extend to proceedings which parties would be reasonably deterred from bringing if the utility of the proceedings would not be affected. Courts do not have access to the information needed to determine whether or not parties are reasonably deterred by openness or publicity from bringing particular kinds of proceedings; for example, sexual complaints. Legislatures are better equipped than courts to make informed decisions on such matters.
4. No unnecessary restriction upon public access or publicity in respect of court proceedings is permissible.
5. Different degrees of restraint are permissible for different purposes. Although the categories tend to coalesce, they are broadly as follows: Exclusion of the public or a substantive restraint upon publicity is not permissible unless abstractly essential to the practical utility of a proceeding; for example, prosecutions for blackmail or proceedings for the legitimate protection of confidential information: cf. R. v. Chief Registrar of Friendly Societies, Ex parte New Cross Building Society; A limited exclusion or restraint is permissible if necessary to ensure that a proceeding is fair; for example, witnesses may be required to absent themselves from hearings, parts of jury trials may take place in the absence of the jury and limited or temporary restrictions on publicity may be imposed during the course of jury proceedings; and An incidental, procedural restriction is permissible if necessary in the interests of a party or witness in a particular proceeding; for example, identities of witnesses or details of particular activities which are not directly material such as engaging in covert law enforcement operations or providing information to police may be suppressed.

Whilst application for suppression orders or leave to sue by pseudonym are reasonably common, because of the very nature of the subject matter, published judgements setting out the guiding principles are seen less frequently. Examples of the circumstances in which leave has been given to sue by pseudonym include:

• ADT v LRT [2024] QSC 169 – where the husband of an incapacitated testatrix applied for leave to vary a will such that it was considered appropriate to remove all references to the testatrix that would identify her so as to preserve her privacy and dignity;
• SPM v LWA [2013] QSC 138 – where Henry J made orders to protect the identity of the donor of a Power of Attorney, ostensibly to protect their dignity and privacy;
• Re JT [2014] QSC 163 – where Anne Lyons J in dealing with a similar application about a non-publication order regarding the identity of JT, to protect JT’s ‘dignity, privacy and to recognise the vulnerability of JT given her disability;
• BYM v Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane (No. 1) [2023] QSC 298 – where Williams J considered that a protection order in respect of the plaintiff should be maintained in circumstances in which she had made allegations of childhood sexual abuse against a teacher at a school in which she had attended
• MBR v Parker [2012] QCA 271 – Margaret McMurdo J ordered that the appellant’s name be anonymised in the court’s reasons for judgement and in the transcript. She observed that the success of such an application requires the interests of justice be so clearly in favour of anonymisation as to outweigh the principle of open justice. In that case the order was made because Section 52(1) of the Coal Mining Safety and Health Regulation 2001 (Qld) limited disclosure of a coal miner’s medical records and parts of those records were in evidence.
• Rowley & Ors v Dell’Osa & Anor [2024] QDC 30 – where Byrne DCJ refused an order for anonymisation. In his judgment he considered the views of Applegarth J in R v. O’Dempsey where Applegarth J had said that anonymisation was a minimal incursion on the principle of open justice. Byrne J however thought that while there is a higher threshold to justify a full suppression order, and that there is a lower standard for anonymisation, it does not mean that the order is to be easily granted. The applicant in that case had claimed that after friends and family had discovered the reasons behind the matters being raised, they had ceased contact with her. She also claimed that she had been denied employment opportunities due to the focus on her case.  An order for anonymisation was refused.
• GHI v. Queensland Police Service & Ors [2023] QMC 12 – Magistrate Simpson made an order for anonymisation of the defendant’s name.  She had been a contestant on a reality TV program and had been charged with offences including rape, sexual assault and torture.  She had been harassed by the media and assessed by her psychologist as experiencing a variety of mental health issues including suicidal ideation.  In making the orders Magistrate Simpson considered the “calculus of risk approach” outlined in AB (A Pseudonym) v. R (No 3) (2019) 97 NSWLR 1046 – where it had been said:

“… consider the nature, imminence and degree of likelihood of harm occurring to the relevant person.  If the prospective harm is very severe, it may be more readily concluded that the order is necessary even if the risk does not rise beyond a mere possibility.”

            Because of the risk of suicide, the order was made.

• JDT v. PDL (No. 2) [2022] QDC 147 – an order was made for anonymisation of all copies of the judgment in circumstances in which the plaintiff had brought a claim for defamation against the defendant arising out of allegations of sexual offences. The plaintiff applied to anonymise all matters in the defamation proceeding through an application of Section 10 of the Criminal Law (Sexual Offences) Act 1978 (Qld).  Judge Long granted the order.
• AB (A Pseudonym) v. CD (A Pseudonym) & Ors (2019) 364 ALR 202 – the High Court made an order to supress publication of the applicant’s children’s names and photographs pursuant to Sec 77 RE of the Judiciary Act 1903 (Cth).  The order was made in circumstances in which the application was a police informant, and it was considered necessary to protect the safety of those persons.
• Dental Board of Queensland v. Boctor [2003] QHPT 007 – where the registrant had been granted an order for suppression of his name due to his age and the nature of the offence which involved improperly touching a client during a dental consultation.  On appeal it was found that the suppression order could not be maintained as it is in the public interest that proceedings be conducted in public, absent statutory prohibition.  It was thought that this may also in appropriate cases, encourage other complainants to come forward.  It was observed that public shaming is part of the accountability process.  Regard was also had to the age and experience of the registrant, the nature of the charge, whether such conduct was likely to occur in the future and the lack of remorse or insight of the registrant.

As a practitioner in the field of personal injuries, we frequently see claims in which plaintiffs have suffered psychological injury either as a result of discrete events or as a secondary injury due to physical harm.

Very often, the circumstances in which these injuries have been suffered are confronting, scandalous or just high profile. Media scrutiny can be intense, and with the reach of social media and electronic publications in the digital age, the impact that publication of a plaintiff’s name and the circumstances of their injury can be significant. Online stories can achieve significant reach very quickly. With the ability of keyboard warriors to quickly and often ignorantly add comments to news stories, posts or articles, the risk of collateral damage to these well-intentioned plaintiffs can be very high indeed.

No practicing lawyer is going to argue against the need for an open and just legal system. But in a digital world, is it perhaps time that the bar was lowered a little when it comes to protecting the identity of deserving, damaged and vulnerable plaintiffs?

Footnotes
¹ Scott v Scott [1913] AC 407; Russel vs Russell (1976)134 CLR 495 at 520.
² [2019] QSC 2.
³ At [105].
⁴ (1986) 5 NSWLR 465.
⁵ At [476] – [477].
⁶ [6] [1993] QCA 12; (1995) 2 Qd R 10.
⁷ At 44 – 45.