A v Peters
[2011] VSC 478
•23 September 2011
| 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 proceeding, whether civil or criminal.
…
19 Circumstances in which order may be made under section 18
The Court may make an order under section 18 if in its opinion it is necessary to do so in order not to—
…
(b) prejudice the administration of justice;
…
Section 133 of the Public Health and Wellbeing Act 2008 relevantly provides:
(1) This section applies if—
(a) evidence is proposed to be given in a matter before a court or tribunal of any matter relating to HIV or any other prescribed disease; and
(b) the court or tribunal considers that, because of the social or economic consequences to a person if the information is disclosed, the court or tribunal should make an order under this section.
(2) If this section applies, the court or tribunal may—
…
(c) make an order prohibiting the publication of a report of the whole or any part of the proceedings or of any information derived from the proceedings.
…
Hepatitis C is a prescribed disease for the purposes of section 133 of the Public Health and Wellbeing Act 2008.[2]
[2]Public Health and Wellbeing Regulations 2009 reg 79A.
In addition, the Court has inherent jurisdiction to conduct its own proceedings in the way best calculated to advance the interests of justice.[3]
[3]BK v ADB [2003] VSC 129, 2 [6] (Nettle J); Re a Former Officer of Australian Security Intelligence Organisation (1987) VR 875, 876-877 (Brooking J).
I have been referred to numerous cases in which pseudonym orders have been made including some in similar circumstances.[4] In the trial of AAA v BBB,[5] Ashley J made an order protecting the identity of the parties. In an application later made to set aside the order, his Honour said:
This is a case which, when I made the order and now, has the content to raise strong emotion in the community. It involves artificial insemination of a woman, a topic about which there has been and remains much religious and ethical debate. It involves also medical termination of a pregnancy, again a matter of very considerable public debate. To say that there are many in the community who agitate for the right to abortion at will is not to deny the strongly held views of those who oppose abortion altogether. It is notorious that there is a degree of organisation in both camps, and that by word and deed they have made their views known.
…
I think that the emphasis upon the defendant's alleged conduct, particularly in relation to the termination of pregnancy, could readily be expected to incite strong and adverse views about her in sections of the community. It is notoriously the fact that such sections of the community have not been silent in the past in what they regard as provocative circumstances.[6]
[4]TK, PB & LS v Australian Red Cross Society (1989) 1 WAR 335; BK v ADB [2003] VSC 129; ABC v D1 [2007] VSC 480; AAA v BBB (Unreported, Supreme Court of Victoria, Ashley J, 26 August 1994, BC9406139) 10, 15; ANN v ABC & XYZ [2006] VSC 348 (Hollingworth J). See below n 8.
[5]AAA v BBB (Unreported, Supreme Court of Victoria, Ashley J, 26 August 1994, BC9406139).
[6]Ibid 10, 15.
In ABC v D1,[7] J. Forrest J summarised the principles applicable when making such an order. The case involved the sexual assault of a plaintiff in a rural Victorian town. In the context of the case, J. Forrest J distilled from the authorities the following principles:
First, that the principal rule is that judicial hearings should take place in open court: publicly and in open view, with no restriction on reporting. This is a fundamental precept underpinning the administration of justice.
Second, that in certain circumstances the administration of justice requires a qualification of the general rule. There will be circumstances where modifications of the general rule are necessarily made to ensure that the administration of justice is not frustrated. These exceptions are many and varied and cannot be prescriptively identified.
Third, that the test to be applied by the court in making a pseudonym order is, to use the words of the statute, whether it is necessary to do so in order not to prejudice the administration of justice.
Fourth, that a court, in determining whether to make a pseudonym order, is entitled to take into account the individual considerations affecting the person seeking the order and balance those against the principal rule of open justice in determining whether the administration of justice warrants the making of the order. Relevant to these individual considerations is whether there is a real risk of the party or witness suffering psychological harm as a result of publication of his or her name or the names of other parties. Also relevant is the real risk of a party not proceeding with an action in the event that he or she or another person is identified.
Fifth, that in certain circumstances, particularly those involving sexual assaults, it may be appropriate not only to suppress the name of the plaintiff but also to suppress the name of the defendant or defendants.
Sixth, that in determining whether to make such an order, a court is entitled to take into account the fact that there will still be a reporting of the proceeding and that the hearing itself will be conducted in open court, subject to the restrictions imposed by the pseudonym order.
Seventh, in determining whether it is necessary to make such an order, usually the proofs must be cogent and will not be satisfied by mere belief on the part of a party that the order is necessary. However, in certain cases a court can, in a practical sense, act on its own experience and draw appropriate inferences.[8]
[7][2007] VSC 480.
[8]ABC v D1 [2007] VSC 480, 18-19 [65]-[71]. These principles have been considered and applied in other cases, including AX v Stern [2008] VSC 400, 2-3 [6] (Warren CJ); AB v D1 [2008] VSC 371, 2-3 [7] (Kyrou J); Anon 2 v XYZ [2008] VSC 466 (Kaye J).
The proposed plaintiff
The individual considerations affecting the proposed plaintiff in this case are set out in her affidavit sworn on 12 August 2011. The proposed plaintiff deposes that the information is of a very private and sensitive nature to her.
Considerations regarding termination of pregnancy
The pregnancy that was terminated at the Surgery came about as a result of a sexual assault. The proposed plaintiff had already had one termination procedure. She has not told any members of her family (apart from her mother) nor the majority of her friends, and she does not want anyone else to know about the terminations.
The plaintiff also deposes that she is concerned:
· that any children, partner or work colleague that she may have in future, her friends, family and the public generally might find out that she had terminated two pregnancies and that one was very late into the pregnancy.
· that knowledge of her termination procedures may upset any children she may have in the future, affect her relationships with any partner, work colleagues, family and friends.
· that people will judge her because of the decisions she has made and will ostracise her.
· that people who know her will make adverse moral judgments because of personal, moral or religious views about terminations, particularly terminations late in pregnancy and that this could have adverse consequences in the workplace, socially and on her future employment prospects.
Considerations regarding diagnosis of Hepatitis C
In relation to her diagnosis with Hepatitis C, the plaintiff has not told any of her family members apart from her mother, nor the majority of her friends and she does not want anyone else to know about it. The plaintiff deposes that since her diagnosis, the few friends who do know about it have treated her differently. They do not want to be around her and refuse to associate with her. As a result the proposed plaintiff is reluctant to go out and has moved home from the share house in which she was living because she was worried about the risk of infecting her housemates and about more people finding out that she had Hepatitis C.
The proposed plaintiff is concerned:
· about the possibility of her friends, family, any future partner or employer and the public generally knowing that she has Hepatitis C and the additional stress this would cause her.
· that knowledge of her infection may damage her relationships with any partner or work colleagues she may have in the future and her friends and family members.
· that people would make assumptions about how she had conducted herself sexually or about drug abuse because she had contracted the infection and that she would be ostracised at any future workplace or from her existing social networks.
As a consequence of contracting Hepatitis C and the circumstances in which she contracted it, the plaintiff has had counselling and has been advised to take anti-depressants. She has tried three different types of medication, each for a period of two weeks but found they made her worse. She is no longer taking medication for depression. The proposed plaintiff has Hepatitis C in her liver. She has been advised that it is clearing but will still require weekly treatment for at least another two and a half months.
The plaintiff has also been diagnosed with an adjustment disorder relating to her infection. She experiences anxiety attacks, depression, anger, mood swings and a general fear that she will never get her life back to be the way it used to be. She feels unwell regularly and her immune system is significantly weaker since contracting Hepatitis C. She is concerned that public knowledge of the fact of her illness and the circumstances in which it was contracted would cause such stress and anxiety that she would get sick more often and more severely and that her mental health would deteriorate.
After contracting Hepatitis C, the plaintiff had to take a considerable amount of time off work. When her employer found out that she had Hepatitis C, he asked her to resign. She is concerned that any publicity from this proceeding may limit any future employment prospects and the willingness of potential employers to hire her because of her infection or because of views they might hold in relation to terminations of pregnancies.
The proposed plaintiff has deposed that she would not be willing to be the plaintiff, nor would she wish to be a group member if she was not able to participate in the proposed group proceeding anonymously.
The proposed group members
The plaintiff’s application is supported by an affidavit of Paul Henderson, solicitor, sworn 19 August 2011. In this affidavit, Mr Henderson deposes that the proposed plaintiff is one of 50 women who underwent a termination of pregnancy at the Croydon Day Surgery between January 2008 and mid-December 2009 and that following their terminations each of the 50 women were tested for Hepatitis C and each of them were diagnosed as having Hepatitis C or were found to be carrying Hepatitis C antibodies.
Considerations regarding termination of pregnancy
Based on instructions gained from interviews with all 50 women, Mr Henderson deposes on information and belief that many proposed members expressed significant concern during the interviews about the prospect that it may become known to their children they have or those they intend to have in the future, their friends, family, employers and the public generally that they have terminated a pregnancy. Many group members expressed concern about the adverse emotional effects upon and possible damage to their relationships with these people that may be caused by reason of the knowledge of their termination. Many group members are apprehensive about adverse views their family, friends and employers may form about their decisions and their moral or ethical integrity if their termination were to become known. Many group members expressed fear that they would be ostracised from their existing social networks and would experience decreased employment prospects if their termination was to become known.
Mr Henderson deposes that the trial of the group members’ individual claims would involve discovery and the admission into evidence of medical records concerned with the termination procedures. These records contain extremely personal and sensitive information regarding the circumstances giving rise to the pregnancy, prior terminations, sexually transmitted diseases, drug use and the gestational age of the foetus upon termination. Many of the group members have chosen not to disclose such details to family members, friend, partners or employers and are very concerned about the potential for these details to become known to such persons through the court process.
Considerations regarding diagnosis of Hepatitis C
Many of the proposed group members have instructed that their friends and family members either do not know that they have been diagnosed as having Hepatitis C or have been found to be carrying Hepatitis C antibodies or that the people who do know treat them differently as a result. Many of the group members have instructed that they believe that there is a social stigma associated with Hepatitis C and that it has had an adverse impact on their confidence, self esteem, their sociability and the way they are able to live their lives.
Associate Professor Damon Eisen, an infectious diseases physician of 15 years standing was asked to provide background comments relating to the group of 50 women who have been infected with Hepatitis C after their attendance at Croydon Day Surgery. In his expert report, Associate Professor Eisen states that:
A person known to be positive for Hepatitis C may face a degree of stigmatisation although this is less of an issue than with other blood borne viruses such as HIV. Hepatitis C positive people are unable to donate blood. As there is a risk of sexual transmission of Hepatitis C, albeit small, people known to be infected with the virus may find it difficult to form relationships. The Hepatitis C virus is clearly not spread through casual contact and people known to be infected should not be viewed as an infectious risk in the wider community.
It follows then that there would be possible harm from publication of the names of women tested positive for Hepatitis C through attendance at Croydon Day Surgery.[9]
[9]Report of Associate Professor Damon Eisen dated 23 June 2011 being Exhibit PH8 to the Affidavit of Paul Henderson sworn 19 August 2011.
Mr Henderson deposes that many of the 50 women are concerned about the prospect that it may become known to their friends, family, employers and the public generally that they have been diagnosed as having Hepatitis C or found to be carrying Hepatitis C antibodies and the adverse impact this knowledge may have on their relationships with their friends, family and employers. Many of the group members have instructed that they are concerned that if it becomes known their family, friends or employers will make assumptions about how they conduct themselves sexually or about drug use and that they will be ostracised at work or from their existing social networks. In this case, this concern is magnified by the fact that many of the group members have not disclosed and do not wish to disclose the circumstances in which they contracted the infection because of the prejudice they feel they would suffer if it became known that they had terminated a pregnancy.
Finally, Mr Henderson deposes that the majority of the 50 women have instructed that if they are not able to bring the proceeding anonymously then they are not prepared to proceed with their claim by being either a plaintiff or group member.
Should a pseudonym order be made in this case?
I am satisfied from the affidavit material that the concerns of:
· the proposed plaintiff that she may suffer personal distress, prejudice or ostracism from family, friends or in the workplace are such that in the absence of an order the proposed plaintiff will be deterred from being a plaintiff or a member of the group in the proposed group proceeding,
· the proposed group members that they may suffer personal distress, prejudice or ostracism from family, friends or in the workplace are such that in the absence of an order the majority of the proposed group members will be deterred from being members of the group in the proposed group proceeding.
In my opinion, these concerns are real and not merely theoretical. The factual circumstances are unusual and are likely to attract significant community interest. Wide dissemination of the information in the news media is to be expected. The issue has already stimulated interest in this regard.[10]
[10]See for example, Grant McArthur, ‘Authorities had restricted anaesthetist’s registration: Doctor a known drug user’, Herald Sun (Melbourne), 12 April 2010, 12; Affidavit of Paul Henderson sworn 19 August 2011 and Exhibit PH4 thereto.
Counsel for the applicants submitted that any order made should apply to all members of the group (not just to the majority) as this will give utility to progressing the claim in the form of a group proceeding. I accept the force of this argument. Given the commonality of issues involved it seems desirable to facilitate the bringing of these claims as a group proceeding.
In the circumstances of this case, public knowledge of the identity of the proposed plaintiff or group members in the group proceeding would be likely to defeat the paramount object of the Court which is to do justice according to law. I consider it is necessary to make an order under s 18(1)(c) of the Supreme Court Act 1986 prohibiting the publication of the name of the proposed plaintiff and proposed group members in order not to prejudice the administration of justice.
The order is also made under s 133 of the Public Health and Wellbeing Act 2008. The social consequences of disclosure in this case are significant as the proposed plaintiff and the majority of the proposed group members would be deterred from engaging in the legal process if their identities were to be disclosed and the utility of bringing the proceeding as a group proceeding might be compromised as a result.
As the proposed defendants have not been served with the summons in this matter I will provide that the orders shall have effect until an order is made to the contrary.