Afflito v Commonwealth of Australia

[2003] NSWSC 276

CITATION:	Afflito v Commonwealth of Australia and Ors [2003] NSWSC 276
HEARING DATE(S):	4/4/03
JUDGMENT DATE:	10 April 2003
JUDGMENT OF:	Shaw J
DECISION:	(1) Reject the application for the subpoenas to be set aside; (2) Dismiss the notices of motion; (3) Require the respondents/plaintiffs to formally give undertakings proffered by thier counsel as a condition precedent to the production of the disputed material; (4) Order that the applicant in these proceedings pay the costs of the respondents of the proceedings.
CATCHWORDS:	Practice and Procedure - subpoenas - public interest - whether public interest in privacy of blood donor identity outweighed by plaintiffs right to bring their actions -
LEGISLATION CITED:	Human Tissues Act 1993 (NSW) ss 4, 21C, 21D, 37 Public Health Act 1991 (NSW) Sched 1
CASES CITED:	Alister v The Queen (1984) 154 CLR 404; Ainsworth v Hanrahan (1991) 25 NSWLR 155; Arhill Pty Limited v General Terminal Co Pty Limited (1990) 23 NSWLR 545; Bell Group Limited (in liq) v Westpac Banking Corp (1998) 86 FCR 215; BC v Australian Red Cross Society (Unreported, VicSC, 25 February 1991); BC v Australian Red Cross Society (Unreported, VicCA, 7 March 1991); NJ v Australian Red Cross Society (Unreported, VicSC) PD v Australian Red Cross Society (NSW Division) (1993) 30 NSWLR 376; ZG v Australian Red Cross Society (Unreported, NSWSC 23 May 1997);
PARTIES :	Maria Afflito - Plaintiff Commonwealth of Australia - First defendant Australian Red Cross Society - Second defendant Stephen Baker - Plaintiff Australian Red Cross Society - Defendant John Howard Emerton - Plaintiff Australian Red Cross Society - Defendant
FILE NUMBER(S):	SC 20282/02; 20458/02; 20023/02
COUNSEL:	D Letcher, QC - Plaintiffs P Garling, SC with S Woods - Defendant
SOLICITORS:	Turner Freeman Solicitors - Plaintiffs Frances Allpress Solicitor - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Shaw J

10 April 2003

20282 of 2002


Maria Afflito (Plaintiff)

v

Commonwealth of Australia (First Defendant);

and

Australian Red Cross Society (Second Defendant)


20458 of 2002


Stephen Baker (Plaintiff)

v

Australian Red Cross Society (Defendant)


20023 of 2002


John Howard Emerton (Plaintiff)

v

Australian Red Cross Society (Defendant)

JUDGMENT

1 Shaw J: The defendant to common law proceedings in negligence has filed a notice of motion seeking to set aside three subpoenas issued at the request of the plaintiff. I shall refer to the Red Cross Society as the applicant in these proceedings and to the plaintiffs as the respondents.

2 The actions were heard together.

3 Each respondent alleges that they contracted the Hepatitis C virus (“HCV”) as a result of a blood transfusion and that there was a negligent failure to properly screen blood donors prior to their making voluntary blood donations so as to prevent, or at least minimise, the prospect of a recipient contracting HCV.

4 The cases brought by the plaintiffs all relate to blood transfusions made at a time when there was no clear test for HCV. Nevertheless, the respondents claim that there were some tests that could have indicated a donor was of a high risk category and that this test should have been used. It is also alleged that there was, in general, a failure of the system of screening the blood of the donor. In addition it is alleged that the questionnaires given to the donors were inadequate for the purposes of identifying the risks. The injuries said to be suffered are the onset of HCV, shock and psychological injury as well as liver damage.

5 The applicant objects to the production of information that would identify the donors. They have already produced the required documents to the court, although there is some dispute as to the comprehensiveness of the production, though in an edited form to prevent the identity of the donor being ascertained.

6 It is common ground that, in order for the subpoenas to be pressed in full form, that is to say including the names and details of the donors, there must be a legitimate forensic purpose: Alister v The Queen (1984) 154 CLR 404. Also it is accepted that the test formulated by Rogers CJ in Arhill Pty Limited v General Terminal Co Pty Limited (1990) 23 NSWLR 545 at 556 is correct, namely whether production of the documents is necessary for disposing fairly of the proceedings.

7 What the applicant does dispute is whether a legitimate forensic purpose has been shown and whether the production of the documents is ‘necessary’ for the fair conduct of the respondents’ cases.

8 This debate occurs in a legislative context where Parliament has, with some important exceptions, sought to protect the privacy of donors.

9 The Human Tissue Act 1993 (NSW) provides by s 21C that removal of a donor’s blood for the purposes of transfusion should not occur ‘unless the donor has signed a certificate relating to the medical suitability of the donor, being a certificate in or to the effect of the prescribed form…’. Under s 21D of the Act it is an offence for a person to sign such a certificate ‘which contains any statement, which to that person’s knowledge, is false or misleading in a material particular’.

10 Section 37 of that Act concerns the disclosure of that information and enjoins a person to whom the section applies to prevent the disclosure of information or the publication of a record whereby ‘the identity of a person, whether living or deceased from whose body tissue has been, is being, or may be removed for the purpose of its transplantation or its use for other therapeutic purposes…’ may be ascertained.

11 By section 4 ‘tissue’ is widely defined as including ‘a substance extracted from, or a part of, the human body’.

12 It is accepted by the applicant that this Court has power to require the production of such information ‘for the purposes of any legal proceedings or of any report of such proceedings, or with other lawful excuse’: s 37(3) of the Act.

13 The Public Health Act 1991 (NSW) provides sections requiring notification in certain circumstances of the Director General for the Department of Health and this includes an obligation to notify or report the discovered existence of HCV (see category 3 to schedule 1 of the Act).

14 It was said by the Court of Appeal in PD v Australian Red Cross Society (New South Wales Division) (1993) 30 NSWLR 376 (at 382):

Accordingly it is clear that since the commencement of the Public Health Act parliament has authorised the courts, in appropriate cases, to order disclosure of information enabling a blood donor who has given HIV contaminated blood since the commencement of the Act to be identified and traced. In these circumstances, it is clear that intending donors cannot look to the Red Cross for any effective promise or assurance that it will be able to preserve their anonymity in relation to current and future donations; in the proper case the court may order disclosure subject to appropriate restrictions and safeguards. What the Red Cross can do is ensure intending donors that all information given by them to the Red Cross will be kept confidential and that the only circumstance in which it will ever disclose information would be if required to do so by Act of Parliament or court order and that the court would be asked that any order should be subject to any appropriate restrictions and safeguards. In the circumstances the blanket public interest immunity contended for by the Red Cross…cannot be supported.

15 No party doubts, and the Court certainly accepts, that there is a public interest in the maintenance of a safe and sufficient supply of blood donations in this community. However, in a series of judgments (and the case just cited is one of them) courts in Victoria and NSW have required the production of documents identifying details of donors for the purpose of litigation.

16 Mr Garling, SC, for the applicant, makes the salient point that, with some exceptions, these cases concerned HIV based claims where death was a real and pressing possibility. However, I am not persuaded that, in point of legal principle, there is a qualitative difference between those cases and the present one, except perhaps as a matter of emphasis on urgency.

17 These cases were collected by Studdert J in ZG and Ors v Australian Red Cross Society (Unreported, NSWSC, 23 May 1997) and include the judgment of the Victorian Supreme Court in BC v Australian Red Cross Society and Anor (Unreported, Cummins J, 25 February 1991) against which leave to appeal was refused by the Full Court (Unreported, McGarvie and Gobbo JJ, 7 March 1991). Studdert J also referred (at 13) to two more recent Victorian cases which involved plaintiffs who had received transfusions of blood infected with HCV (NJ v Australian Red Cross Society and NN v Australian Red Cross Society). As Studdert J points out Hedigan J in both cases found himself:

satisfied that the public interest in the administration of justice and the private rights of the plaintiffs predominates over the public interest relied upon by the Red Cross.

18 In NJ and NN Hedigan J seems to have determined the question of the appropriateness of the plaintiff having access to the identity of the donor as a matter of submission rather than evidence. Contentions were put to the effect that such identity was required in order to determine:

what the defendant told the donors at the time of the provision of blood, when and why donors were deferred, whether they had been told that there was a risk of transmission of Hepatitus for recipients of blood and blood products, whether the defendant was aware that one or more of the donors was not a new donor but was presenting under a different name, and to seek the permission of the donor in each case for access to the donor’s medical history and records…Put another way the plaintiff wishes to seek to confer with the donors in order to determine whether or not facts existed, and may have been put forward, which would have required the defendant to exclude the donor.

19 In the course of determining these matters, and I note that in no case brought to my attention has a court declined to order the production of the donor’s identifying details when the plaintiff has sought it, the courts have developed a series of undertakings which go a long way to protecting the anonymity of the donor and successfully attempt to balance the interests of justice against such privacy considerations. These undertakings are offered by the solicitors for the respondents in the present proceedings and take the following form:

(1) Order that the defendant permit the plaintiff’s solicitors to inspect unedited copies of the documents in possession or control relating to donor no ……… which disclose name, address and other personal details, subject to the following conditions:
(a) Plaintiff by his solicitor undertake to the court that he will not commence any proceedings against the blood donor No ………
(b) Plaintiff’s solicitors file and serve on the solicitors for the defendant a written undertaking to the court by the plaintiff that except as authorised in this order she will not herself or by solicitors or agents subpoena such donor or seek to approach him/her or any person connected with him/her without the leave of a judge of this court.
(c) The plaintiff makes no use of any information obtained pursuant to this order nor relay to others any information obtained without the leave of a judge of this court (my addition).
(2) This order is not to come into operation until:
(a) Plaintiff’s solicitors file and serve on the solicitors for the defendant a written undertaking to the court:
(i) To initiate any request to a social worker or counsellor for his or her co-operation in approaching donor no………. to make him/her to consent to the disclosure of his/her medical records to the plaintiff’s legal advisors, or to be interviewed by them, or to both, by positing or delivering to such social worker or counsellor a letter in the form annexed to these orders together with a sealed copy of this order;
(ii) Not to issue any subpoena requiring attendance of any such social worker or counsellor in these proceedings without the leave of a judge of this court;
(b) The defendant within 7 days of service of the undertaking referred to in (a) above or such further time as a judge of this court may allow, supply to the plaintiff’s solicitors the name of any social worker or counsellor currently administering to donor no ………… and the address of the hospital, institution, house or place where donor no ……… currently is or resides and sufficient information to enable such social worker or counsellor to identify donor no ………., these steps being intended to enable the plaintiff’s solicitors to initiate the request referred to above; OR
(c) Further order of a judge of this court.
(3) If:
(a) The defendant does not comply with order (2)(b); or
(b) The defendant does comply with order (2)(b) but the social worker or counsellor therein referred to declines to co-operate in approaching donor no ……… for the purposes stated in order (2)(a)(i) then liberty is reserved to the plaintiff upon 2 days notice to the defendant, to apply forthwith to a judge of the Common Law Division to consider whether order (2)(a)(ii) should come into operation and if so on what terms.
(4) Any social worker or counsellor who approaches donor no ………. In compliance with a request referred to in order (2)(a)(i) is further requested to provide a concise written report of the results of the approach to donor no ………., such report to be lodged in a sealed envelope with the Registrar of the Common Law Division who is to notify the solicitors of the plaintiff and of the defendant of the lodgement of such report forthwith and list the matter for further proceedings under this order before a judge of the Common Law Division.
(5) That is be left to the discretion of the judge before whom the matter is listed pursuant to order (4) to determine whether any, and if so in what manner, part of the report is to be disclosed to the parties’ solicitors.
(6) General liberty to apply to a judge of the Common Law Division in respect of the matters above set out on 2 days notice.

20 It is true, as Mr Garling, SC, for the applicant, contended that in each case, a balancing exercise needs to be performed, and it is true that such a process and its result may be largely one of impression. As Gibbs CJ said in Alister v The Queen at 412:

Sankey v Whitlam [142 CLR 1] establishes that when one party to litigation seeks the production of documents, and objection is taken, and it would be against the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld and to decide which of those aspects pre-dominates. The final step in this process – the balancing exercise – can only be taken when both aspects of the public interest do require consideration – i.e. when it appears on, the one hand, that damage would be done by producing the documents sought or documents of that class and, on the other hand, that there are or a likely to be documents which contain material evidence. The court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation…

21 In his able argument, counsel for the applicant spent some time seeking to make the point that the evidence in the present case was of considerably less detail had been given than by the solicitor who gave evidence before Studdert J in ZG. There does appear to be a difference in detail judging from the excerpts from the affidavits set out in his Honour’s judgment. Nevertheless, in ZG no survey evidence had been adduced (see 14). What was attested to by the solicitor was the ‘perceived need’ to interview the implicated donor. To some extent the solicitor’s evidence was speculative, saying, for example:

It may be that had the questionnaire asked donors whether they were injecting drug users, the implicated donor in this case would have acknowledged his past use of non prescription drugs and consequently been prevented from donating.

22 In the present case the evidence given points out the respondent’s allegation that ‘relevant questions’ should have been asked of the donor and answers should have been followed up, there being knowledge of the risk factors at that time. Proof of that allegation would require contact with the donor. Moreover, the evidence of the solicitor for the respondents attests that:

the plaintiff’s legal advisors require access to the full and uncovered records of the defendant and possible access to the donor to ascertain factors found to be relevant in previous analogous cases and of evidentiary significance in those cases…’

23 She then goes on to specify nine further areas of potential investigation that could be made through contact with the donor as follows:

(1) Whether the donor was in a high risk group at time of infected donation;
(2) Medical history at time of infected donation;
(3) Answers likely to have been given to more stringent questions which should have been asked of the donor;
(4) Whether the donor was known to be Hepatitis positive at the time of donation;
(5) Ability to obtain the donor’s hospital and medical records;
(6) Knowledge by the donor of his/her risk status at the time of donation;
(7) Evidence by the donor of the circumstances under which he-she completed the documents and/or was interviews by the defendant’s staff;
(8) Medical condition of the donor at the time of donation;
(9) How the donor might have reacted if proper and adequate information of risk factors and risks of infection had been given at the time of donation.

24 There was no request to cross-examine the deponent and hence the evidence was admitted unchallenged.

25 Although in each case there needs to be a balancing exercise, nonetheless the line of decisions given by the courts points strongly to the prospect of material evidence being gained by a plaintiff as, generally speaking, outweighing any adverse consequences to the public interest arising from the disclosure of the donor’s identity.

26 The applicant relies upon the evidence of Dr Brenton Russell Wylie, who was the Director of the Australian Red Cross Service in NSW during the 1990s and is currently the National Director of Blood Products and Tissue Banking for that service. The Doctor’s major concerns were that if the blood service could not guarantee the donors that their records would be kept in ‘strictest confidence’ there would be ‘two serious risks’. Either donors would not be entirely frank in answering questions put to them or potential and existing donors would be discouraged from donating blood because of their concern as to the use to which their confidential donor information may be put. This evidence was the subject of cross examination and, as I appreciated the evidence given by the witness, there is no evidence of a substantial decline in blood donation as a result of prior orders of the courts for the disclosure of this information.

27 Also, while I accept that there is a strong public interest in having people make full and frank disclosure of their past activities before donating blood there are legislated penal sanctions involved making a false or misleading statement: s 21D Human Tissue Act 1983 (NSW).

28 Similar public policy considerations were advanced before Hedigan J in NJ and NN yet his Honour thought, on balance, that the plaintiffs were entitled to the donor identity information in proceedings concerning HCV.

29 There was one significant objection to an aspect of the respondent’s evidence, that is to four annexures to the solicitor’s affidavit which contained material produced by the applicant in other proceedings. There was no objection to the tender of material which had been produced so far as it related to the present respondents.

30 These annexures were produced in relation to pending proceedings, or proceedings which may have concluded, in the District Court and it is material produced in response to a subpoena. The principle relied upon to object to the material, by analogy with the discourse about discovered documents being used for a collateral purpose, was that the use of such documents should be limited to the conduct of proceedings in which they were produced: see for example, Ainsworth v Hanrahan (1991) 25 NSWLR 155 at 157, 164, 167, 169; Bell Group Limited (In liq) v Westpac Banking Corp (1998) 86 FCR 215 at 220.

31 Although a court has power to give leave and to authorise the disclosure of documents for the use of evidence obtained in one set of proceedings in a subsequent set of proceedings, there is force in the proposition that this Court has difficulty in doing so where the proceedings are occurring or have occurred in another court. In all of the circumstances I have not regarded the material in paragraph 9(a), (b), (e) and (f) of the Affidavit of Ms Clifton of 28 March 2003 as being of assistance to the conclusion that I have reached.

32 In my opinion, Mr Letcher, QC, for the respondents, has shown sufficient forensic utility in the potential material which has been withheld to tip the balance in favour of full production rather than the production of edited documents. He relies upon the factors set out in the solicitor’s affidavit which are recounted above. He also relies upon certain gaps and inconsistencies in the documents which have so far been produced, for example in relation to the respondent Baker, that his case would be assisted by evidence from the donor that she was HCV positive in 1985. He points to the absence of the usual inclusion of a registration card, medical history and a complete set of declarations. Similar gaps or anomalies are to be found in the so far tendered documents concerning the plaintiffs Afflito and Emerson.

33 In all of these circumstances I propose to:

1) Reject the application that the three subpoenas be set aside pursuant to Pt 38 r 8 of the Supreme Court Rules 1970;
2) Dismiss the notices of motion;
3) Require the respondents to formally give the undertakings proferred by their counsel as a condition precedent to the production of the disputed material;
4) Order that the applicants pay the costs of the respondents in relation to these proceedings.

(His Honour published his reasons. Mr Woods, for the applicant/defendant, sought a stay of 21 days after the undertakings were given so that his client could consider whether they would wish to appeal. Mr Woods indicated the significance of the period of time. Ms Cameron, for the plaintiff/respondent had no objection).

HIS HONOUR: The orders of the court as I have made them this morning shall be stayed for a period of 21 days commencing after the respondents to the notice of motion have given the undertakings proffered by their counsel as is contemplated in order number 3 that I've made this morning.

(Mr Woods inquired of his Honour whether the stay would work individually. His Honour confirmed this. Mr Woods sought to argue costs be plaintiff's costs in the cause. Ms Cameron indicated she was not in a position to argue as to costs and sought to stand the matter over for appropriate counsel to argue costs. Ms Cameron sought clarification as to what the plaintiff was seeking. His Honour clarified this. Ms Cameron sought a short adjournment to seek instructions).

SHORT ADJOURNMENT

(Ms Cameron indicated she had spoken to her colleagues and was not in a position to concede to the proposed order. Ms Cameron sought to stand the matter over to another occasion. Mr Woods sought liberty to approach his associate to have the matter listed at a convenient time. His Honour consented).

oOo

Last Modified: 04/14/2003