Australia: Lessons from a failed Supreme Court bid for pseudonym order by a former AFL player

Last Updated: 10 April 2015
Article by Ula Strus (formerly with Holding Redlich)

Most Read Contributor in Australia, August 2019

The Supreme Court of Victoria recently refused an application by a former player at the Essendon Football Club ("Club") to be identified by a pseudonym (rather than by his real name) in proceedings he intended to commence. In doing so, the Court:

  • reaffirmed the principles which govern the granting of what are commonly referred to as 'pseudonym orders'; and
  • emphasised the distinction between pseudonym orders and suppression orders.

Any individual intending to seek identity protection from the Courts in proceedings should be alert to the circumstances in which a Court may make a pseudonym order.

What is a pseudonym order?

In Hal Hunter v Australian Football League & Anor [2015] VSC 112, the player sought orders pursuant to the Open Courts Act 2013 (Vic) that he be permitted to issue proceedings using a pseudonym; that his true identity be kept confidential during the proceedings; and that he be referred to in court documents (which are generally publically available) and in open court by that pseudonym.

With respect to the nature of the substantive proceedings to be issued (for which the pseudonym order was seemingly sought), the Court noted media reports that the player was proposing to bring a compensation claim against the Club and the AFL stemming from the Club's supplements program.

The Court made it clear that there is a distinction between a pseudonym order and a suppression order. A pseudonym order permits a party to commence civil proceedings using a pseudonym and requires that party to be identified in court documents only by that pseudonym. A pseudonym order will not restrict the media or members of the public from observing the actual proceedings in the Court. In short, there is complete openness in the Court's processes, except that the relevant person's identity is not revealed.

A suppression order has a much wider operation. It will generally prohibit or restrict the publication or other disclosure of information in connection with the relevant proceedings.

Circumstances in which a Court may make a pseudonym order

In this case, the player sought a pseudonym order on the basis that the substantive proceedings may reveal his health, condition and personal medical/health records.

The Court noted that pseudonym orders are generally made where it is desirable to protect the safety, health or personal integrity of parties or witnesses in court proceedings. Pseudonym orders are commonly granted in the following circumstances:

  • Where disclosing the identity of the party might deter that party from commencing legal action.
  • Cases involving sexual offences, children and/or asylum seekers.
  • Cases involving the national interest.

The Court endorsed previous decisions which establish the legal principles governing the making of a pseudonym order. Relevantly, the Court noted that there must be a compelling evidentiary basis underpinning an application for a pseudonym order. The Court made it clear that it will not be sufficient for a party to have a mere belief that an order is necessary.

Failure by the player to establish a sufficient evidentiary basis

The player's evidence in this case was not sufficient to persuade the Court to make a pseudonym order. The player sought the order on the basis that the substantive proceedings may disclose his personal health and medical information. In rejecting this, the Court noted the following:

  • There was no distinction between the circumstances of the player's substantive proceedings and proceedings brought against health professionals for compensation for medical negligence, which are common.
  • The player was not able to point to any risk of prejudice to the 'administration of justice' if a pseudonym order were not made.
  • The underlying circumstances of the Club's supplements program had been well publicised and the foreshadowed claim by the player against the Club and the AFL had received widespread publicity.
  • There was no suggestion that the player would be deterred from commencing proceedings under his own name.
  • There was no suggestion that a decision not to grant a pseudonym order in this case would affect the confidentiality surrounding separate proceedings on foot relating to the Club's supplements program.

Key messages for individuals seeking identity protection

The Court's decision highlights the approach prospective parties should take when seeking a pseudonym order. Importantly, parties should strive to establish some or all of the following:

  1. The safety, health or personal integrity of the party will be threatened if the order is not made.
  2. The party will be deterred from commencing proceedings if the order is not made.
  3. The substantive proceedings concern minors or alleged sexual offences.
  4. The administration of justice will be prejudiced if the order is not made. For example, there is a risk that widespread media publicity may adversely affect the proceedings.
  5. Related proceedings are likely to be prejudiced if the order is not made.
  6. Crucially, the party seeking the order has more than a mere belief that the order is necessary.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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