AB (a pseudonym) v McKimm and Anor (Ruling)
[2015] VCC 987
•15 July 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
MEDICAL LIST
Case No. CI-14-00409
| ‘AB’ (a pseudonym) | Plaintiff |
| and | |
| DR ROBERT McKIMM | First Defendant |
| and | |
| CENTRAL GIPPSLAND HEALTH SERVICE | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 July 2015 | |
DATE OF RULING: | 15 July 2015 | |
CASE MAY BE CITED AS: | AB (a pseudonym) v McKimm & Anor (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 987 | |
RULING
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Subject: PRACTICE AND PROCEDURE
Catchwords: Application for orders enabling the plaintiff to continue a proceeding for damages in respect of the cause of action – application for pseudonym order
Legislation Cited: County Court Civil Procedure Rules 2008, r49; Open Courts Act 2013
Cases Cited:ABC v D1 & Ors [2007] VSC 480
Ruling: Orders granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Harper | Slater & Gordon |
| For the First Defendant | Ms V Nicholson | Avant Law |
| For the Second Defendant | Mr M Regos | DLA Piper |
HIS HONOUR:
1 In this application, the plaintiff seeks an order enabling her to continue a proceeding for damages in respect of the cause of action set out in the Statement of Claim herein via the use of a pseudonym.
2 The application made by the plaintiff is supported by an affidavit sworn by the plaintiff’s instructing solicitor, dated 3 July 2015, together with an affidavit sworn by the plaintiff dated 29 June 2015. The content of those affidavits are matters of record and are not in issue.
3 Notice of this application was served upon each of the defendants. The application is opposed by the second defendant. The position of the first defendant is that it neither opposes nor consents to the making of the order which the plaintiff seeks.
4 It is not in issue that this Court has jurisdiction to make the order sought. Neither is it in issue that the Open Courts Act 2013 recognises the fact that a pseudonym order falls into a different category to a generalised non-disclosure order in that:
· whilst the latter may affect the capacity of the media or public to appreciate what is occurring in a proceeding before a court;
· the effect of the former is to limit the disclosure of the identity of a party to a proceeding, and not otherwise limit access of the media or members of the public to the proceeding.
5 In ABC v D1 & Ors,[1] Forrest J set out the following principles which govern an application of this type:
[1]Supra
[65] 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.
[66] 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.
[67] 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.
[68] 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.
[69] 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.
[70] 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.
[71] 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.”
6 In this instance, the affidavit sworn by the plaintiff makes it clear that the primary ground for the application involves the plaintiff’s concern that both her relationship with her son and his mental state may be damaged by the publication of the circumstances which give rise to the claim made against the defendants, namely that:
(i) the plaintiff, at the age of seventeen, consulted the first defendant seeking a termination of her pregnancy, the gestation period of which was, at that time, seven-and-a-half weeks;
(ii) shortly thereafter, the first defendant undertook a suction curettage procedure upon the plaintiff to terminate the pregnancy;
(iii) this procedure was not successful;
(iv) following the procedure, the plaintiff, believing that the procedure had been successful, engaged in a period of binge alcohol drinking;
(v) the plaintiff’s son, who was subsequently born on 7 July 2008, suffers from disabilities associated with an abnormality in the function of his brain which was, in turn, caused by the mechanical trauma involved in the course of the attempted termination.
7 Relevantly, in her affidavit, the plaintiff describes her son as:
· About to turn seven years of age and as becoming increasingly aware of his disabilities and the impact that those disabilities have on his daily life;
· Having been subjected to mockery and physical bullying from children at school, the distressing effect of which was such he was removed from his original school and relocated to a small primary school on the Mornington Peninsula where he is presently enjoying a sense of security and acceptance.
8 The plaintiff further attests to the fact that other than for her parents, her son’s biological father and the defendants, no other person is aware of her election to have a termination of her pregnancy which was ultimately not successful and which was responsible for causing the disabilities with which her son now presents.
9 Relevantly, the plaintiff, in the course of her affidavit, attested as follows:
“I am very fearful that my son’s mental state will be seriously damaged by the impact and burden of such knowledge. I am very fearful that his relationship with me, his enjoyment of life, and the gains he has made at school, in therapy and in the community will be undermined or drastically set back by him knowing the circumstances of the pregnancy and further by him knowing that it is public knowledge that he is the child involved. I believe that in turn I will not be able to mentally cope knowing that because I have pursued these proceedings I have caused my son additional injury suffering him a setback.”
10 In opposing the application, the defendants contend that, in applying the principles distilled by Forrest J in ABC:
(i) the plaintiff has not asserted that she would discontinue the proceeding should her identity be disclosed; and
(ii) that there is no “cogent evidence” that the mental health of either the plaintiff or her son would be affected should her identity be disclosed in this instance;
11 In my opinion:
· Whilst the latter point is well made against the plaintiff, who, in support of the application, may have exhibited medical evidence as to the effect which the disclosure of her identity may have upon her in this instance; however.
· It could not be said that any material could reasonably have been presented as to the emotional consequences likely to be experienced by the plaintiff’s son given that he is oblivious to the fact that the plaintiff sought to terminate her pregnancy or of the fact that is alleged that this decision by his mother culminated in him suffering an injury to his brain and his resultant disability.
12 In my opinion, notwithstanding the absence of any such evidence, there could be little doubt:
(i) Firstly, that significant emotional trauma may well be occasioned to a seven-year-old who was advised that his physical disability resulted from a decision made by his mother to terminate the pregnancy which resulted in his birth; and
(ii) Secondly, that a mother would be emotionally traumatised should her decision to exercise a right to seek compensation result in the compromise of her son’s emotional wellbeing given his sensitive emotional state.[2]
[2]In making this statement, I do so on the basis of the evidence that the plaintiff’s son is undergoing therapy to assist him to cope with what I interpret to be the emotional consequences of his disability.
13 There is no issue the plaintiff has not asserted that she would discontinue the proceeding should her identity be disclosed. Whilst I am satisfied that this fact should be accorded appropriate weight in the balancing exercise required of me in this instance, I am equally satisfied that this fact alone should not be accorded such weight that it is determinative of the plaintiff’s application.
14 Whilst it is asserted on behalf of the second-named defendant that there have been “several wrongful births” cases issued in Victoria in which plaintiffs did not have the benefit of a “pseudonym order”, I am satisfied that the circumstances of the present case fall into a largely unique category given:
· The alleged relationship between the plaintiff’s decision to seek a termination of her pregnancy and the disability with which her son now presents;
· The emotional vulnerability of her son as demonstrated by his need for therapy and his inability to cope with schoolyard jibes, the consequence of which being the necessity to change his school.
15 Giving due weight to each of the principles which apply in this case and approaching my task in balancing the conflict between the principle rule of open justice and the individual considerations which arise in this instance, I am satisfied taking into account:
(i) the restrictions upon open justice which are associated with the making of the order sought in this instance, the effect of which will be merely to prevent the disclosure of the identity of the plaintiff and her son;
(ii) my finding based upon the application of both common sense and experience, as to the potential effect which the identification of the plaintiff in this instance may well have upon the well-being of her son;
that it is necessary, in order not to prejudice the administration of justice, that an order in the terms sought by the plaintiff as set out in exhibit LK4 of the affidavit of the plaintiff’s instructing solicitor be made in this instance.
16 I will reserve to the defendants however liberty to apply to paragraphs 3 through to 6 of that Order, which liberty is to be exercised within seven (7) days of the date of this Ruling.
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