A v Peters - [2011] VSC 478

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT
COMMON LAW DIVISION

No. of

A	Plaintiff
v
JAMES LATHAM PETERS & ORS	Defendant

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JUDGE:	ALMOND J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 September 2011
DATE OF JUDGMENT:	23 September 2011
CASE MAY BE CITED AS:	A v Peters
MEDIUM NEUTRAL CITATION:	[2011] VSC 478	Amended 3 October 2011

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PRACTICE AND PROCEDURE – Suppression order – Proposed group proceeding under Part 4A of the Supreme Court Act 1986 - Application by proposed plaintiff and proposed group members to use pseudonyms rather than names of plaintiffs – Supreme Court Act 1986 (Vic) ss 18 and 19 – Public Health and Wellbeing Act 2008 s 133.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B F Quinn with Ms T A Leane	Slater & Gordon
For the Defendant	No appearance

HIS HONOUR:

This is an ex parte application made by summons dated 2 September 2011 in which a proposed plaintiff seeks leave to commence a group proceeding under Part 4A of the Supreme Court Act 1986 using pseudonyms to ensure there is anonymity for the proposed plaintiff and the group members she seeks to represent.

The proposed plaintiff wishes to commence a proceeding on her own behalf and on behalf of proposed group members who:

(a)between January 2008 and mid-December 2009 underwent a procedure for termination of pregnancy (“termination procedure”) at the Croydon Day Surgery (“the Surgery”) in Croydon in the State of Victoria; and
(b)for the purposes of the termination procedure were administered anaesthetics intravenously by Dr James Latham Peters; and
(c)since undergoing the termination procedure have, for the first time, been diagnosed as having Hepatitis C or have been found to be carrying Hepatitis C antibodies.

The proposed defendants are:

· Dr James Peters, the anaesthetist for each termination procedure;

· Dr Mark Schulberg, the owner and operator of the Surgery; and

· Australian Health Practitioner Regulation Agency.

The proposed plaintiff and the proposed group members seek damages in negligence against each of the proposed defendants on the grounds alleged in a proposed statement of claim placed before the Court.[1] The application is supported by an affidavit of the proposed plaintiff sworn 12 August 2011 and an affidavit of her solicitor, Paul Henderson, sworn 19 August 2011.
[1]Affidavit of Paul Henderson sworn 19 August 2011 and Exhibit PH5 thereto.

The Court has ample sources of power to make an order of this kind under ss 18 and 19 of the the Supreme Court Act 1986 and, in this case, s 133 of the Public Health and Wellbeing Act 2008.

Section 18 and section 19 of the Supreme Court Act 1986 relevantly provide:

18 Power to close proceedings to the public
(1) The Court may in the circumstances mentioned in section 19—
…
(c) make an order prohibiting the publication of a report of the whole or any part of a proceeding or of any information derived from a proceeding.

(2) This section applies to any…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading A v Peters

Details

AGLC: A v Peters [2011] VSC 478
Case: [2011] VSC 478
Decision Date: 23 September 2011

CaseChat Overview and Summary

The case of A v Peters was heard in the Supreme Court of Victoria. The dispute involved a proposed group proceeding under Part 4A of the Supreme Court Act 1986. The proposed plaintiffs and group members sought an order to use pseudonyms instead of their real names. This application was contested by the defendant, who raised concerns about the potential impact on the public interest and the principle of open justice.

The primary legal issues revolved around the interpretation of sections 18 and 19 of the Supreme Court Act 1986, which govern the use of pseudonyms in proceedings, and section 133 of the Public Health and Wellbeing Act 2008, which pertains to the disclosure of information in the context of public health. The court had to determine whether the proposed use of pseudonyms was justified and balanced against the public interest in open justice and transparency. The court also considered the specific circumstances of the case, including the potential for harm to the proposed plaintiffs if their identities were disclosed.

The Supreme Court found that the use of pseudonyms was appropriate in this instance. The court held that the potential for harm to the proposed plaintiffs outweighed the public interest in open justice. The court emphasised the importance of protecting the privacy and safety of individuals involved in sensitive litigation, particularly where there is a risk of significant harm. The application for the use of pseudonyms was granted, and the court provided detailed directions to ensure that the proceedings could proceed in a manner that protected the identities of the plaintiffs while maintaining the integrity of the legal process.

No final orders were made in this case as it was an interlocutory decision. The court's ruling allowed the proposed plaintiffs to proceed with the group proceeding under pseudonyms, subject to the conditions and directions provided by the court.

Orders