Kostov v YPOL Pty Ltd (No. 2)

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].

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.

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:

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”.

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”.

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).

To give effect to our earlier determination, the following directions were made on 12 December 2018:

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.

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.

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.

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.

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:

The attached certificate, addressed to the “President court of appeal”, and signed by the medical practitioner, stated:

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.

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.

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.

In the result, the Court makes the following orders: