Kostov v YPOL Pty Ltd (No. 2) [2019] NSWCA 1

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Kostov v YPOL Pty Ltd (No. 2) [2019] NSWCA 1 Hearing dates: On the papers Date of orders: 25 February 2019 Decision date: 25 February 2019 Before: Beazley P; Meagher JA; Simpson AJA Decision: 1. The order made by Payne JA in this proceeding on 26 February 2018 is vacated.

2. Pursuant to s 8(1)(e) of the Court Suppression and Non-publication Orders Act 2010 (NSW), prohibit the publication or other disclosure in New South Wales and until further order of the information contained in:

(a) The third sentence in [42] in [2017] NSWSC 1071; and (b) The second sentence in the quote from Dr Gertler's opinion in [43] in [2017] NSWSC 1071.

3. Discontinue the use of the pseudonym ZXC to identify the appellant, Adriana Kostov, in this Court's judgment [2018] NSWCA 306.

4. Make no order as to the costs of Ms Kostov's notice of motion filed 31 January 2019. Catchwords: SUPPRESSION AND NON-PUBLICATION ORDERS – where in earlier judgment Court determined that a limited order prohibiting publication of references identifying certain third parties in first instance judgments was necessary – where late application made for general pseudonym order – where medical evidence in support of that application wholly inadequate – limited order made and application for general pseudonym order dismissed Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW), s 8 Cases Cited: N/A Texts Cited: N/A Category: Principal judgment Parties: ZXC (Appellant) YPOL Pty Ltd (Respondent) Representation: Appellant in person File Number(s): 2017/353721; 2018/106954 Publication restriction: See [17]. Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2016] NSWSC 1722; [2017] NSWSC 341; [2017] NSWSC 395; [2017] NSWSC 1071 Date of Decision: 01 December 2016 Before: Bellew J; Fagan J; Adamson J File Number(s): 2016/257819

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment 1. THE COURT: The circumstances of these proceedings are outlined in this Court's judgment of 12 December 2018 allowing Ms Kostov's appeal in part and dismissing her application for leave to appeal: ZXC v YPOL Pty Ltd [2018] NSWCA 306. That judgment included the reasons for dismissing ground 4 of the appeal, which challenged the order made by Fagan J on 22 August 2017 vacating suppression orders he made on 11 July 2017: at [24]–[26]. 2. For the reasons which follow Ms Kostov is referred to in this judgment by her name, rather than the pseudonym ZXC. That is the consequence of this Court's rejection of her application made after our principal judgment was delivered that in all of the judgments in the appeal and underlying proceedings (2016/257819) a pseudonym be used. The first instance judgments are subject to a non-publication order made pending the determination of Ms Kostov's appeal from Fagan J's 22 August 2017 order. That interim order (made by Payne JA on 26 February 2018) is also to be set aside and a more specific order made which prohibits the publication of two references in earlier judgments that identify two persons, who are not parties to or otherwise relevant to any of the issues in the underlying proceedings. 3. At [25] of our principal judgment we set out Fagan J's reasons for not being satisfied that continuance of the earlier non-publication order was necessary to protect Ms Kostov's mental health. They included: 1. that her actions had already exposed her to "considerable publicity of her disturbed state", without leading to self-harm; 2. that the conduct relied on as constituting the contempt had been "of an open and public nature, including her attendance at [YPOL's] office and creation of a confrontation"; 3. that there had been several hearings in the proceedings which followed, each of which was conducted in open court; and 4. that the nature of the conduct giving rise to the contempt charges and his Honour's concerns as to her psychological state had been referred to in his judgment of 27 March 2017 ([2017] NSWSC 341 esp. at [8], [13], [15] and [33] which was not the subject of any suppression order until 11 July 2017). 1. We also noted at [28] that in written submissions received since the hearing of the appeal, Ms Kostov maintained that her medical circumstances had changed, that she had "recovered", and that she was "back at work". 2. Ms Kostov's email communications to the Court, both before and after the hearing of the appeal, indicated that her interest in the suppression orders principally related to the unnecessary identification of particular third parties in earlier judgments in the Common Law Division. As is noted in Judgment [27], in her email of 22 October 2018, she explained that whilst she is "not ashamed that [she] became unwell", those third parties "should not be dragged into this". 3. Having regard to Ms Kostov's stated concern as to the identification of those persons, and because they were "wholly peripheral to the issues" in the proceedings below, this Court determined that an order prohibiting publication of the references identifying them should be made, the public interest in open justice not requiring their identification: Judgment [27]. Whilst that remains the position, the basis for the order which we now propose to make is that those references if published are likely to cause significant and unnecessary emotional distress to the persons concerned. There is a general public interest in the maintenance of the confidentiality of medical information. Where that information concerns persons not involved in litigation, and the information is not otherwise relevant to any issue raised, that interest outweighs the public interest in open justice. The public interest in open justice would in no way be enhanced by publication of the information the subject of the orders we will make, and suffers no detriment from the prohibition of its publication. Accordingly, we are satisfied that the limited order should be made on ground (e) in s 8(1) of the Court Suppression and Non-publication Orders Act 2010 (NSW). 4. To give effect to our earlier determination, the following directions were made on 12 December 2018: 8. Direct the appellant to provide to the Court by 5 pm on 17 December 2018 a list of the paragraphs in any judgment in proceedings 2016/257819 that identify either or both of the two persons in relation to whom a non-publication order is sought. 9. If no such list is provided in accordance with that direction, the order made on 26 February 2018 by Payne JA will be vacated without further order on 18 December 2018. 1. On 17 December 2018, Ms Kostov provided to the Court by email a list answering the description in order 8 above. That list identified three pieces of information. The third, which is not the subject of the order to be made, concerns part of a confidential annexure to McCallum J's judgment in [2017] NSWSC 514, the terms of which include a restriction on the publication of the whole of that annexure. As matters then stood it was proposed that a limited order be made prohibiting disclosure of the remaining two pieces of information, and that the order made by Payne JA be vacated. 2. That email also included "a proposal" that all judgments remain suppressed pending Ms Kostov's provision of further medical evidence, and alternatively, that all references to her name be substituted with a pseudonym. 3. After the parties were notified that the Court would deliver its reasons for the then proposed orders, Ms Kostov sent the Registrar on 24 January 2019 an unfiled notice of motion and affidavit. The motion sought an order that: "All judgments, in Kostov v YPOL, be replaced with pseudonym ZXC". The affidavit set out reasons why Ms Kostov believed such an order should be made. Those reasons focussed on the consequences for her employment and health that might flow from her continuing to be identified in the earlier judgments, assuming the existing interim order was lifted; and in that context, reference was made to aspects of the psychiatric evidence before Fagan J, which was given in early to mid-2017. 4. To allow that motion to be advanced and dealt with, on 29 January 2019 the Court advised the parties that unless the proposed notice of motion and affidavit were filed by 5pm on 31 January 2019, it would proceed to deliver judgment on the basis that the foreshadowed application was not pressed. If that application was made, Ms Kostov was directed to file and serve any "further and current medical evidence relied on in support of her application" by 5pm on 13 February 2019. 5. The notice of motion and affidavit were filed on 31 January 2019, and in the early afternoon of 14 February 2019, the Registrar received an email from Ms Kostov to which was attached a certificate signed by a doctor practising at the Sydney CBD Medical Centre and headed "Medical Opinion". The email relevantly advised: On 6th February 2019, I contacted Dr Ellis, the author, of the original report, relied upon, for my application, per the below. He telephoned me, and advised me (once he had viewed my Motion, and the Direction from the Court), that, it would be more appropriate, for my treating medical team, that has seen me, for the past year, to write to the Court, about this issue. As such, I have attended the CBD Medical Centre, and provided them with a copy of my Motion, and the Direction from the Court below. 1. The attached certificate, addressed to the "President court of appeal", and signed by the medical practitioner, stated: This is to certify that I have had a consultation with Adriana KOSTOV on 14/02/2019. She has been a regular patient attending to our clinic since 2016. In my opinion, there is no compulsion nor it's in Adriana's best interest to have her medical diagnosis of 2016 being disclosed in public judgement as this would clearly harm/affect her emotional wellbeing. Please feel free to contact me for any information. 1. This certificate is plainly inadequate and unsatisfactory as an evidentiary basis for the Court making the pseudonym order sought by Ms Kostov. As someone who has practised as a lawyer, Ms Kostov is be taken to have appreciated the importance of securing a reasoned medical opinion supporting her application. She having been given the opportunity to obtain that evidence, and informed by Dr Ellis that it was appropriate that it be given by someone currently treating her for any relevant condition, the absence of such an opinion is itself significant. 2. The short form certificate provided does not indicate for how long, if at all, the signing doctor (as distinct from any other doctor at the Medical Centre) has been treating Ms Kostov. Nor does it identify any condition or problem for which Ms Kostov is currently being treated by the doctor or anyone else, the nature and seriousness of any such condition, or the doctor's reasons for believing that by reason of that condition, disclosure of her "medical diagnosis of 2016" would clearly "harm/affect her emotional wellbeing". Nor does it say what the "medical diagnosis" refers to, or explain what the "harm/affect" might be. 3. Taking account of Ms Kostov's recent statements as to her medical circumstances having changed, the fact that the publication of her actions and conditions to this point in time has not led to any self-harm and the absence of any current medical evidence supporting her application, we are not satisfied that it is necessary in the public interest for the pseudonym order to be made, or for the use of a pseudonym in the appeal proceedings to continue. 4. In the result, the Court makes the following orders: 1. The order made by Payne JA in this proceeding on 26 February 2018 is vacated. 2. Pursuant to s 8(1)(e) of the Court Suppression and Non-publication Orders Act 2010 (NSW), prohibit the publication or other disclosure in New South Wales and until further order of the information contained in: 1. The third sentence in [42] in [2017] NSWSC 1071; and 2. The second sentence in the quote from Dr Gertler's opinion in [43] in [2017] NSWSC 1071. 1. Discontinue the use of the pseudonym ZXC to identify the appellant, Adriana Kostov, in this Court's judgment [2018] NSWCA 306. 2. Make no order as to the costs of Ms Kostov's notice of motion filed 31 January 2019.

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Amendments 25 February 2019 - [2] - omit second "that" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 February 2019