Justice Nicholas was asked a question that has been troubling humankind since the dawn of time: If a tree falls in a forest and no-one hears it, does it make a sound? Or put in terms of the defamation list, if a statement of claim is served on a pseudonym, has the case started?

On 6 March 2013, the Sydney Morning Herald ran a story: “investigation of cheap Botox `sausage factory’.” The journalist, Melissa Davey, had a source for the story, and she promised to keep the identity of that source a secret. She wrote the following in her article:

“A patient, Susie Driver, complained to the college after she developed thrush and a two-week headache after treatment in December. She had previously bought a voucher from the discount website Groupon to receive `anti-wrinkle injections’ for $139….

Ms Driver said that when she redeemed the voucher she was told she would receive 30 units of Botox over two facial areas, working out at $4.63 a unit. According to the college, in Australia genuine Botox costs a doctor about $5.67 a unit…..

Ms Driver said she was told Botox would be used in the injections.

The Gladesville clinic eventually refunded the price of Ms Driver’s voucher.”

The first plaintiff ran the business, Ultrasonic Slimming Clinics and the second plaintiff was the owner and sole director of the business. They sued the Sydney Morning Herald, Melissa Davey and also Susie Driver, who as it turned out, is not her real name.

In serving the statement of claim, given that the plaintiffs had no idea who the mysterious Susie Driver was, they applied to the court for an order for substituted service. They intended to send the statement of claim pm her, by serving the solicitors for the first two defendants. The media objected.

The media relied on the tried and trusted privilege relating to the identity of the journalist’s source. They referred to sections 126J 126K and 131A  of the Evidence Act 1995 (NSW). Those sections basically provide that if a journalist has promised an informant not to disclose the informant’s identity, then neither the journalist nor the employer is compellable to give evidence that would disclose the identity of the informant or enable that identity to be ascertained.

The media defendants argued that what the plaintiffs were doing, was simply trying to get the source’s identity through other means, in that the source would have to put in an appearance and thus reveal her secret identity.

However, His Honour Justice Nicholas disagreed that this would necessarily happen. He concluded that the application was just one of procedure and of bringing notice of the case to “Ms Driver”. The journalist-source privilege provisions had no application to what the plaintiffs were trying to do, and substituted service ought to be allowed. Nothing in the application sought disclosure of anything from anyone.

So Ms Driver could be served with the proceedings and it was really up to her as to what their next step would be. His Honour pointed out that Ms Driver could apply for a suppression order or a non-publication order (not sure what the point of that would be, the person would still be liable for damages, just no-one would know about it).

So apparently, a plaintiff can sue a person under their pseudonym. Lucky they didn’t have this rule in Gotham City, Batman would have been bankrupted six times over.