Australian Red Cross Society (New South Wales Division) v PD

[1993] HCATrans 3

. IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl2 of 1993

B e t w e e n -

AUSTRALIAN RED CROSS SOCIETY

(NEW SOUTH WALES DIVISION)

Applicant

and

PD

Respondent

Application for special

leave to appeal

BRENNAN J
DEANE J

DAWSON J

Red Cross 1 4/2/93

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 4 FEBRUARY 1993, AT 12.44 PM

Copyright in the High Court of Australia

MR R.V. GYLES, QC: If the Your Honours please, I appear

with my learned friend, MR P. DWYER, for the

applicant. (instructed by Tress, Cocks & Maddox)

MR P.C.B. SEMMLER, QC:  May it please Your Honours, I appear

with my learned friend, MR J.T. RUSH, QC, for the

respondent. (instructed by Slater & Gordon)

BRENNAN J:	Do you have any notes of argument, Mr Gyles?
MR GYLES:	I do not, Your Honours, no.
BRENNAN J:	We thought we might, if you had them, collect

them from you before we adjourned, but in the

adjourn until 2.15. absence of any we shall now adjourn. We will

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

BRENNAN J:  Mr Gyles?

MR GYLES: If Your Honours please. Your Honours, I would

submit, would require little persuasion as to the

general importance of the topic dealing as it does with the supply of blood for medical purposes, and involved in the interests of blood donors,

patients, the Red Cross and litigants.

The points which we propose as being points of

interest, from a special leave point ofview, are,

firstly, the decisive effect given to certain

legislation by the Court of Appeal and, secondly,

the orders that they made.

As to the first ground, that is the decisive

effect given to certain legislation, Your Honours

will see from page 36 of the book, starting at

line 25 and finishing at page 37 line 2, that in

Their Honours' view the two Acts to which reference

is made:

furnish sufficiently clear reason requiring

this appeal to be allowed to make it

unnecessary to consider other matters argued

on the public interest immunity point.

In other words, Their Honours regarded the

legislation as being quite decisive of the issue.

Red Cross 4/2/93

Now, Your Honours, that legislation which is

common through the States - I am not sure about the

fine detail but, in essence, it is common through
the States - was not in force at the time of the

occurrences in question in this litigation, thus it

had no application to the circumstances.

Your Honours, even if it had been in force, it

would have had no application in the circumstances

relevant to the issue before the Court. To the

extent that the legislation might be instructive by

analogy or instructive as to the balancing of

interests in the matter, as indicated in the

legislature's view about the topic, it would point,

in our respectful submission, strongly in the
direction of confidentiality rather than
disclosure. In our respectful submission, the

Court of Appeal quite misconstrued the legislation so far as that legislation would bear upon the

issues before them.

I might mention in this connection,

Your Honours, that the point which was regarded as

decisive by Their Honours was not put as a ground of appeal to the Court of Appeal and did not find

its way into the submissions filed by the appellant

and is plainly an issue which was raised by the

court itself. That in circumstances where a

similar point had been noted in a Victorian

decision which had been referred to the trial

judge. So that it can hardly have been that the

omission to argue the point on appeal was the involved in the Victorian case was involved in the
result of any misunderstanding or misapprehension.

case in this case.

It may be that however it came to the

attention of the court, the members of the court

paid undue attention to it by reason of their

having discovered it. It may be necessary in order

to explain to Your Honours what we mean by this

point to go through the legislation, but can I put

it quite shortly, initially at least. If

Your Honours go to page 40 of the book, the gist of

the reasoning of the court is to be found between

lines 13 and 25.

Their Honours had examined the legislation and

point, in the previous pages, to certain provisions

of sections which qualified - I withdraw that. In

several places in the legislation there is an

absolute statutory barrier to the provision of

information about those who have AIDS. In each

case, however, that statutory blanket prohibition

is lifted in very qualified circumstances. The

Red Cross 3 4/2/93

court noted those qualified circumstances and at

line 7 on page 40 said:

Accordingly it is clear that since the

Public Health Act
commencement of the 1991 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

assure intending donors that all information

given by them to the Red Cross will be kept

confidential and that the only circumstances

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 appropriate restrictions and

safeguards.

And on that reasoning, Their Honours then said the

answer must be that the disclosure takes place.

Now Your Honours, before going to the

statutes, it is our submission that in reality the

position be summarized as follows: prior to the

1985 legislation, that is whilst the donation of

this blood and its transfusion took place, there

was no legislation which dealt with confidentiality

at all. The Red Cross ran its service; certainly

it had some statutory recognition, if not statutory

base, but there was no statute which made

disclosure -a breach of the law.

Thus, at that point, if the question had

arisen in court proceedings, whether on discovery,

interrogatories, subpoena or in the witness box, as

to the identity of the donor of the blood, the

public interest issue would then have arisen and

would have been argued purely on a common law

basis, weighing up the interests of the justice in

relation to the particular piece of litigation,
having in mind the purpose for which it was really

required in that litigation, on the one hand, and

the other public interests, and if necessary

private interests on the other. That would have

been a balancing exercise, very similar to that

Red Cross 4 4/2/93

which His Honour the trial judge undertook in the In 1985 Parliament, in the two Acts to which	present case.
reference has been made, intervened, and as part of
a wider scheme, imposed an absolute prohibition
upon the supply of information in relation to
people with AIDS - their identity - and did so in
rather a remarkable way in one sense, because this
condition was selected out from many others and it was only in relation to this condition that that policy was discerned. Not that that is of any
particular importance, perhaps.

A blanket statutory prohibition would have

meant, of course, that you could not use it for the

purposes of the Act itself and it was obvious that
you needed to have some gateways out of the

prohibition. One of them was pursuant to an order

of the court. That assumes, of course, that there

is a proper basis for such an order. It does not

confer jurisdiction to make an order. It assumes

there is an order properly made, or there is a

purpose properly linked with litigation before it

to have been produced.

In our respectful submission, so analysed, the

introduction of the 1985 legislation, the second
reading speeches which introduced it, and the

scheme which has been applied ever since up until

1991, has marked a very special legislative

interest in non-disclosure of the identity of a

donor. Your Honours, how that can be used to

support disclosure and to inhibit the balancing

exercise is indeed a difficult step to understand.

It is not spelt out by Your Honours and, in my

submission, when the scheme of the legislation is

...•. it really is as simple as that.

BRENNAN J:  I may have misunderstood it, Mr Gyles, but I

thought that what Their Honours were addressing was	a submission made by the Red Cross that they needed
to be able to assure their donors of
confidentiality in order to maintain the blood supply. Is that right?

MR GYLES: That is a short summary of it, Your Honour. That

is a short summary of the submission.

BRENNAN J: And Their Honours were pointing out that the Red

Cross was in no position to give that assurance.

MR GYLES: But, Your Honour, it never has been. It is not

possible in this world to give that assurance.

BRENNAN J: That may well be so, but I rather thought that

was the point Their Honours were making, that the

Red Cross 4/2/93

argument did not have the force that it might have

had because the Red Cross was not and, if you like,
never has been in a position to give that

assurance.

MR GYLES:  Your Honour, first of all, to put it in that bald

form does not do the point justice.

BRENNAN J: Yes.

MR GYLES: 

Like every short summary it carries with it - but

the reasoning of the Court of Appeal which we
attack carries with it the assumption that the

legislation has in some way lessened the ability of

the Red Cross to lessen the comfort which a donor
may have about the system.

Now, on the contrary, the provisions which have been brought in since 1985, have very much

increased the security of a donor, whether to the

Red Cross or to medical practitioners or anybody

else. That legislation marks a very clear, I would

submit, recognition of public interest in

non-disclosure. That does not mean - I am not
arguing, Your Honours, of course, that means there

can never be disclosure. What we submit is that a

court, when confronted with the issue, will very
closely attend the necessity for the forensic

purpose, and precisely what use will be made of it,
balanced up with - - -

BRENNAN J: Can we identify the legal issues in this case?

I mean, the first proposition is that the test is

the balancing test. There is no disagreement on

that as I understand it?

MR GYLES:  No. Your Honour, there was not between the

parties. Their Honours say it is not. That is the

point. The parties were agreed that the balancing

test - the public interest exemption, if you like,

from discovery, was to be judged as a balancing

exercise. The court, with respect, disagreed with

that and said, at page 36, 23, to 37, 2 and then

again at 40, 26, to 41, 11, that the legislation

compels an answer in favour of disclosure and

relieves the court from looking at any other

consideration.

BRENNAN J:	If one looks at the bottom of page 32 and the top of page 33, it is by no means clear that the
court was rejecting what they acknowledge to be common ground between the parties.
MR GYLES:	It was common ground between the parties, that is

so, but there the Court of Appeal, with respect to

them, are outlining what happened below. When they come to their own decision, which is to be found at

Red Cross 6 4/2/93

the foot of 36 and the top of 37 and the foot of 40

and top of 41, they take quite a different view.

That is really the kernel of our complaint,

Your Honour.

The alternative way of looking at it, I

suppose, is that they say, whilst the public

interest exemption from discovery may in theory

always be a balancing exercise given this

legislation that disclosure of a name of a donor

will always be required. Now, with respect,

Your Honours, Their Honours said it and said it in

very clear terms.

DEANE J:	I read the judgment the same way as the presiding judge read it and that is that what they said was, "It is a balancing exercise. Were it not for the
evidence of what it would do to future donors, it
would be clear that there should be disclosure.
The evidence about future donors worries us very
greatly, but in the context of that legislation the position in relation to that is quite different and
that largely loses its force.
MR GYLES:	I have a little work to do then, Your Honour,

because the way, with respect, we read the judgment

is quite different from that. May I go back to 32

and 33 to which my attention has been directed?

Their Honours at 32 had outlined the arguments that

were advanced and then summarized what His Honour

did and said at the top of page 33:

Accordingly the fate of the plaintiff's

application for further discovery depended

upon the Court's assessment on the evidence in

the case of the competing claims for

disclosure ..... This balancing exercise was

seen by Newman J -

et cetera. If I could summarize the three issues,

Your Honours, which were argued below. The first

issue was the interests, if I could put it this

way, of the Red Cross of the supply of blood

generally, the macro issue. Then the second issue

raised is the effect upon individual donors, and

thirdly there was the need for the disclosure in a

particular case.

His Honour gave his decision upon the basis of the effect upon the blood supply generally. He did

not deal with the second and he decided the third
adversely to the Red Cross. The appeal to the
Court of Appeal put in issue what His Honour had

found about the effect upon the blood supply, and in substance it was based upon an attack upon the

survey evidence which had been used to found that

decision.

Red Cross 7 4/2/93

When the matter came before the Court of

Appeal, an application to lead further evidence was
made and accepted and further evidence was led

about the survey material. The Red Cross had filed

notices of contention relying upon, or wishing to

reagitate and reargue, first of all the issue of

the effect upon individual donors which had not

been dealt with by His Honour, and secondly to put
again the argument that in the circumstances of the

particular case there was no necessity for the

disclosure, having in mind the ability of the

plaintiff to run its case otherwise. So, they were

the three issues which were again agitated before

the Court of Appeal.

What the Court of Appeal dealt with on

page 34, I am sorry, at the foot of page 33,

Their Honours outlined what the proceedings had

been before them, and it will be seen that what
Their Honours proceed to deal with from pages 34

and 35, and indeed to 30 on page 36, was the survey

evidence which was used to found the finding of

fact by His Honour below that if disclosure were

ordered there would be a detrimental effect upon

the supply of blood. That was his factual

decision, the Court of Appeal looked at that - - -

BRENNAN J: For what purpose?

MR GYLES:  Because that was the ground of appeal before

them. As part of the balancing process which had

taken place below, the challenge by the appellant was to that finding about the effect on the blood supply.

BRENNAN J: And the appellant failed on that?

MR GYLES:  Yes.

BRENNAN J:  The appellant failed. Then you say the Court of

Appeal looked at that evidence. For what purpose?

MR GYLES:  In order to decide the appeal, Your Honour, of course. The - - -

BRENNAN J: Well, they must have been engaged in a balancing

exercise.

MR GYLES:  Your Honour, that is really the end result of

what I am about to take Your Honour to.

If Your Honour then goes to 36, bearing in

mind that what they were looking at at the moment

is only the effect on the blood supply, not, with

respect to Mr Justice Deane, the effect upon

donors. That had not been dealt with in the

judgment at all up to that point.

Red Cross 8 4/2/93

I am sorry, I have misunderstood Your Honour. Your Honour meant possible future donors, not past

donors who might be adversely affected, yes, I

follow. I accept what Your Honour put earlier, I

misunderstood, because there were two aspects of

the donor problem: one, the effect upon future

donors, and two, the effect upon an HIV positive

past donor.

Now, the conclusion at the end of that

argument, that is page 36 line 17 is:

In our opinion, these and other

criticisms of the survey have force, but even

so some of the results, particularly those

referred to above, have given the court much

concern. Clearly, any significant diminution

in the existing level of blood donations in

this State would be a serious matter indeed.

One would conclude at that point that the appellant has been unsuccessful in persuading them

in the attack upon the finding that there would be

a diminution in the existing level of blood

donations, or at least, the court, perhaps without

making a final decision upon the point, were not

prepared to accept that that was a wrong

conclusion. Their Honours then go on:

However, in our opinion -

and it is the passage to which I have already drawn

attention -

furnish sufficiently clear reason requiring

this appeal to be allowed to make it

unnecessary to consider other matters argued

on the public interest immunity point.

Now, Your Honours, it may only be a matter of

semantics. I suppose one could say, "Well, it is a

balancing exercise with only one possible result",

or, "It is not a balancing exercise at all because

the legislation compels the answer". And that

appears also, as I have endeavoured to put, at the

foot of page 40 and the top of page 41, in which

the conclusion at 41 line 7 is:

The appeal must therefore be

allowed -

BRENNAN J:  Mr Gyles, I come back to the question I asked

you before: what were the terms of the submission

which the Red Cross put as to the factor which made

it necessary to give more weight to the general

question of the blood supply? How is it put?

Red Cross 9 4/2/93

MR GYLES: Well, Your Honour, I would have to go back and

see what Mr Justice Newman said and what the

submission said, but I can summarize for

Your Honour what it is, that is that any

unnecessary disclosure of the identity of blood

donors would be detrimental to the future supply of

blood.

BRENNAN J: Unnecessary disclosure?

MR GYLES:  Well, that is what I would summarize the point as

being in that fashion, and they would say - - -

BRENNAN J: Yes. There is no question of saying that the Red Cross needs to be able to assure donors that

their identity will not be disclosed?

MR GYLES:  Your Honour, that would certainly be something

they would desire to do.

BRENNAN J: It may be, but how is the submission put,

because the Act seems to me to be something which

is relevant to the second of those propositions.

MR GYLES: Well, perhaps so, Your Honour, but - well, I will

go back and we will look and see what

Mr Justice Newman - how he recited the precise

terms of the submission and I have the written
submissions before the Court of Appeal with me so I

can answer Your Honour about that as well, but

surely it is not to be decided on a matter of

semantics. The Red Cross say, "There should be no

disclosure in this case of the name of this donor

because any disclosure of a donor's name will have

an adverse effect upon the blood supply". Why?

Because people appreciate the risk that they may be

dragged into this sort of litigation. That is the

point which the Red Cross wishes to address. Now

if the law compels it, the law compels it - and it

always has, with respect. What has simply happened

since 1985 is that there has been a very

considerable improvement in the confidentiality

which might be afforded.

The submission which His Honour

Mr Justice Newman dealt with is at page 6 and I can

do no better than to read page 6:

the allegation that the blood supply in this

State could be endangered by the release of the personal particulars of 061.

So that is apparently the precise matter that

His Honour was dealing with on this issue.	He then
refers to evidence:

Red Cross 10 4/2/93

given by the director of the Blood

Bank ..... that there was ..... a shortage of -

supplies.

It was his view that a serious risk could

arise if, as a consequence of the shield of

confidence being removed from donors, they

would not give blood as they had in the past

and that would result in a shortage -

and so on.

He also gave evidence that if it was the fact

that the court allowed plaintiffs to have

access to details of donors' personal

particulars of the type sought here, that he

would be obliged to warn donors that this

would occur and he was concerned at the

consequences of such a warning.

And then, Your Honours, there was the survey material, which is referred to at page 8, which is discussed in some detail by both His Honour up to

page 12 line 7 and by the Court of Appeal, and

His Honour's finding at page 12 line 7, is:

even accepting that discount, when I look at
that evidence in conjunction with the evidence

given by Dr Wylie I conclude there is a real

risk that if donor confidentiality is breached

the continued supply of blood could be

endangered.

That is the finding of fact which His Honour made

below, which the appellant in the Court of Appeal

sought to have overturned. Looking quickly,

Your Honours, at the written submissions filed in

the court below, Dr Wylie's evidence and the survey

evidence was examined closely and of course, there

was further evidence called in the Court of Appeal.	The issue really was, if this took place, would it
affect the continued supply of blood. Now,
Their Honours, as I have indicated, relied upon the
statutes as closing off that position and
apparently, as a matter of law. And in doing so, in our submission, they seriously misunderstood the
effect of the legislation.

Could I take Your Honours to it. There are

really three pieces of relevant legislation. There

is the Human Tissue Act 1983, the Public Health Act

1991, and the Public Health (Proclaimed Diseases)

Amendment Act 1985. May I hand up copies, and we

include, Your Honour, the Human Tissue Act

regulation.

Red Cross 11 4/2/93

The relevant provisions of these Acts all came

in in 1985, Your Honours, by which time there had

been a blood test developed which was of utility in

screening blood. May I firstly take the Human

Tissue Act 1983. The relevant provisions are in

Part 3, commencing at page 18. There have been

some amendments, and I think I can point those out

where it is significant. Part 3, "Blood

Donations", Part 3A, "Special provisions" dealing

with the "donations of blood or semen", were

introduced in 1985. They have subsequently been

amended in 1987 and 1989.

The scheme which this part brings into play,

if I can summarize it for Your Honours, is this,

that there could be no removal of a donor's blood

for the purpose of transfusion unless the donor

had:

signed a certificate -

this is 21C -

relating to the medical suitability of the

donor ••... in or to the effect of the
prescribed form .•... witnessed by a prescribed

person.

And, secondly, by 210:

A person shall not .••.. sign a certificate
which contains any statement which, to that

person's knowledge, is false or misleading in

a material particular.

In addition to that certificate being obtained the use of the products are prohibited in the absence of an appropriate test. So, it was a two-way process.

Then later 21DA was introduced which

restricted legal proceedings involving infection by

"a prescribed contaminant", and the effect of that

section, Your Honours, for present purposes, may be

summarized as relieving both the donor and the

supplier of the blood from liability in tort or,

indeed, contract, provided that the appropriate

certificate had been obtained, the appropriate test

was conducted, and that in the case of the donor

the position is governed by 21DA(2):

Proceedings for an offence (except an offence

against section 210) -

which is the false or misleading statements -

Red Cross 12 4/2/93

or in tort or for a breach of contract arising

out of the transmission of a prescribed

contaminant ..... may not be brought against the

donor ..... unless it is proved .....

(a) that the donor has previously been found

guilty of an offence against section 210 -

or a corresponding section or -

that the donor would have been found guilty of

such an offence had the donor been charged

with such an offence.

So that the scheme so far is that the donor is free

from potential liability provided that he or she

has not been convicted under 210 of a false or

misleading statement, or would not have been if

charged guilty.

Then, Your Honours, 3B governs the regulation

of businesses supplying blood.	I do not think I
need trouble Your Honours with.that.	Then

section 37 appears, which deals with disclosure of

information, and it applies under (ca):

where blood has been removed from the body of

a person (whether living or deceased):

(i) by a medical practitioner;

(ii) by an employee or member of the

Australian Red Cross Society or of a body

prescribed •.... ; or

(iii) by any other person of a class

prescribed -

Once you fall within the category of a person to

whom the section applies, subsection (2) makes it

an offence to:

disclose information or publish a record

whereby the identity of a person (whether

living or deceased) ..... may become publicly

known.

By subsection (3) that blanket prohibition is

lifted in five particular circumstances in what

Your Honours might think is a fairly typical way of

dealing with that situation:

(a) with the consent of the person ..... -

(b) in connection with the administration or

execution of this Act;

Red Cross 13 4/2/93

(c) in connection with bona fide medical

research;

(d) for the purposes of any legal proceedings

or of any report of any such proceedings; or

(e) with other lawful excuse.

Your Honours, that is not a section which gives

jurisdiction to a court to make any orders. It

simply recognizes the fact that if a court makes a

valid order, then this Act permits that to be given

effect to. I might say, Your Honours, that in the

second reading speech - and I do not have copies of

it for Your Honours at the moment - both originally

and later the public interest in confidentiality is

stressed.

Now, Your Honours, the next Act to go to, is

the Public Health (Proclaimed Diseases) Amendment

Act 1985.

I might say to Your Honours that the

Court of Appeal did not, in their judgment, mention

section 37 of the Human Tissue Act, which is the
section which imposes the prohibition.

Your Honours, the Public Health (Proclaimed Diseases) Amendment Act was an amendment to the

Public Health Act which at that time, as

Your Honours would probably know, was a very large

Act, governing all sorts of disparate matters connected with public health, and it inserted a new division proclaimed "Diseases Part IIIB", and it

provided a regime - and Your Honours can take it

that AIDS is a proclaimed disease - for dealing

with this problem.

As Your Honours may also know there have been,

over the years, various notifiable diseases. This

is a special division, not part of the general

notifiable disease provisions.

BRENNAN J: Now, what should we be looking at, the 1985 Act

or the 1991 Public Health Act?

MR GYLES:  1985 Act, Your Honour, because that is the Act

that mirrored the Human Tissue Act. The 1991

Public Health Act is a completely new Act which picks up and slightly alters the scheme shown by

the 1985 Act. 1991 is the current position. 1985

gives Your Honour - - -

BRENNAN J: Yes. What does the point you are making out of

the 1985 Act?

Red Cross 14 4/2/93

MR GYLES: Well, the 1985 Act was the first occasion upon

which the topic of disclosure of identity was dealt
with by the legislature.

BRENNAN J: I See. Historical interest.

MR GYLES: Well, I suppose if - the short answer is yes.

But, the scheme which this Act introduced in 1985

provided an obligation under section 15H for a
practitioner to make a record when he believes that

a patient has a proclaimed disease, and he sends to

the secretary a certificate in a prescribed form,

relating to the particulars. But, Your Honour, at

that point the certificate does not require

identification of the person. It is done in a sort

of coded form, if you like.

So, the secretary of the department receives the certificate, but does not know who it is. And

indeed, section SOI:

A medical practitioner shall not -

(a) in a certificate sent under section SOH

with respect to a patient; or

(b) except in such circumstances as may be

prescribed, in any written or oral

communication made by the practitioner for the

purpose of arranging any test to ascertain whether a patient has a proclaimed disease.

state the name or address of the patient.

Then, persons who carry out tests, under SOJ, have an obligation to send in the test report "in

the prescribed form"; again, not including the

name. Under SOK, however:

the Chief Health Officer of the Department

may, by notice in writing served personally or

by post -

et cetera, serve a request for the name. The

medical practitioner is then required to comply but

an order authorizing such a notice must be granted

under SOL by application to the district court on

the basis that he:

has reasonable grounds for believing -

(a) that a person the subject of -

(i) a certification ..... or

(ii) a report .....

Red Cross 15 4/2/93

has a proclaimed disease; and

(b) that ascertaining the identity of the

person is necessary for the purpose of

safeguarding public health.

And, in hearing that, it will:

be heard and determined in the absence of the

public -

in accordance with the rules of the court. So, we

submit there is a very clear and rather elaborate

regime for suppressing the identity of a person

with a proclaimed disease, namely AIDS.

There are then provisions relating to the prevention of the spread of proclaimed diseases

which I need not trouble Your Honours with, and

section SOQ provides that:

A person who, because of the operation of this

Part, is aware or has reasonable grounds for

believing that another person has a proclaimed

disease shall not disclose any information

which may identify the other person except -

(a) with the consent of the other person;

(b) where it is necessary to do so in

connection with the administration or

execution of this Part;

(c) where ordered to do so by a court or by

any other body or person authorised by law to

examine witnesses; or

(d) in such circumstances as may be

prescribed.

Again, Your Honours, matching very closely at least	the Human Tissue Act and, in my submission, at that	point, one would have said the legislature, as they
said in the second reading speeches, saw a special
need to protect the identity of persons with AIDS,
or with HIV, because, I think, as one of the
speeches said, "It is the new leprosy".

Then, Your Honours, the 1991 Act is a

reorganised Public Health Act and Part 3 deals with

scheduled medical conditions, and does so in

various gradations.

Your Honours, in Schedule 1 on pages 42 and

43, AIDS is to found in Category 2, which is to be
notified by medical practitioners; Human

Immunodeficiency Virus infection is to be found in

Red Cross 16 4/2/93

Category 3, which is to be notified by

laboratories, and Category 5 consists of those two,

one a syndrome and one is described as an

infection.

When Your Honours go back to Part 3 Scheduled Medical Conditions, Division 3 and Division 4 deal

in particular with the problems, or with the issue,

that is before the Court in this matter.

Division 3 deals with notification and treatment of

certain medical conditions and that, by section 14,

again rather similar to the 1985 legislation,

provides an obligation on the medical practitioner

to record particulars and send a certificate to the

Director-General that relates to the particulars
but does not include the identity of the patient.

Similarly, if, in relation to a test, HIV is

revealed, then again a report is provided which

does not include the name.

Division 4 deals with, and only with, Category 5 medical condition, which is the very topic we are dealing with. Section 17 deals with protection of

identity and provides statutory prohibition upon

the medical practitioner stating the name and
address of the patient, except in very limited

circumstances. It provides, in addition upon:

'

(2) A person who, in the course of providing a

service, acquires information that another

person:

(a) has been -

et cetera. So that, Their Honours in the Court of

Appeal suggest that picks up the Red Cross, and

that may well be so, we accept it is so, and it
provides a statutory obligation to take all
reasonable steps to prevent disclosure of the

information to another person.

Again, section 17(3) provides circumstances in

which that prohibition is lifted, including the

familiar:

by order of a court or a person authorized by

law to examine witnesses;

Again, no grant of jurisdiction to do so, but it recognizes that if a valid order is made it can be

honoured. The district court may authorize the

disclosure of the name and address in very special

circumstances following an application made to it.

And following that order by the district court then the order may be served and will then be complied with.

Red Cross 17 4/2/93

Your Honours, one could not have a clearer indication of the special necessity for privacy in

relation to this topic. Section 75 has a general

prohibition upon persons disclosing -

information obtained in connection with the

administration of this Act -

without a lawful excuse. Lawful excuse includes

for the purposes of the legal proceedings

arising out of this Act or of a report of any

such legal proceedings;

So that, so far as people administering that Act is concerned, there is no escape at all in relation to

other or third party legal proceedings.

Again, Your Honours, in the second reading

speeches which introduced the 1991 legislation, the

responsible Minister referred to the Bill
containing provisions to ensure confidentiality
consistent with the Public Health (Proclaimed

Diseases) Amendment Act and so on and consistently it can be said that since 1985 that has been the

thread through the whole of the legislation.

In those circumstances, Your Honours, it can

hardly be said, in our respectful submission, that

the legislature has indicated any policy for

disclosure. Rather the contrary. Any court which

is conducting the necessary balancing exercise

would, it is submitted, bear that in mind when
approaching the problem. It would approach the

problem on the basis that the legislature has

indicated no disclosure, we would submit, unless

absolutely necessary for the purposes of the

litigation, a test which is familiar enough and was

applied by His Honour and the Court of Appeal have

inhibited themselves from doing so by giving

decisive effect to the legislation.

Your Honours, the other point we submit which

gives rise to a special leave issue is the nature

of the orders which were made in the present case

without any, I might say, submissions from parties

as to their form or content. Those orders are to

be found from pages 49 and onwards and, in my
respectful submission, they give rise to a very
real concern as to the court reaching down into the

preparation of litigation and not maintaining the

detachment from the fray, which is necessary and

was recently asserted in the judgments of this

Court in Dietrich's case, where it was pointed out

that judges really cannot perform the function of

looking after litigants, because to do so is to

intervene in the adversary process and which

Red Cross 18 4/2/93

several of Your Honours referred to the passage

from Powell v Alabama:

How can a judge, whose functions are

purely judicial, effectively discharge the
obligations of counsel for the accused? He

can and should see to it that in the

proceedings before the court the accused shall

be dealt with justly and fairly. He cannot

investigate the facts, advise and direct the

defense, or participate in those necessary
conferences -

et cetera. Now, in the present case, the effect of

the orders which are made, and of the letter which

is to be sent as a result of those orders, is that

the plaintiff in the case is effectively being

facilitated to obtain an interview with the donor

under circumstances where the donor is under no

threat of any proceedings from anybody. And we

submit that to so assist the plaintiff is to go

well beyond any forensic purpose which the rules

authorize.

Your Honours will appreciate that discovery,

which is in issue here, first of all, is

discretionary in personal injuries cases and,

secondly, the rules expressly preserve public interest immunity arguments but, thirdly, the

objective is to provide the document to the other

party for its forensic purposes.

It may be that the disclosure of a document,

in the course of discovery, might lead to a witness

being ascertained and dealt with but that is not

the function of discovery. The function of

discovery is to bring the document to the attention

of the other party. I am not saying that is

illegitimate to find a witness but that is not what

discovery is about, and here we have the court

carefully moulding an order addressing a letter

from solicitors to a social worker purporting - or

not purporting to but in fact setting out the
thoughts of the judges about the case and passing
on the views of the plaintiff's lawyers about the
case and the part that person may play in it, in

circumstances where the court has no idea at all

really of the effect of this upon the recipient.

It did not deal with that issue in its decision, it

passed that by. It said, "We don't have to look at

these issues. The legislation decides it for us

and we do not have to trouble about these other

countervailing considerations", and then they mould

this order.

DEANE J: If you fail on your first point, where does this

lead, in that it is clear enough from the judgment

Red Cross 19 4/2/93

that all these conditions and the letter and so on

followed the court's conclusion that discovery

should be ordered and were not, as it were, a

modification that played a part in the court's

reasoning to that conclusion.

MR GYLES:	Indeed.
DEANE J:	Now, assume against yourself that leave were only

granted on the question whether the court should

impose all these conditions, including an

undertaking not to bring proceedings and so on,

would you want an unrestricted order for discovery

in preference to this?

MR GYLES:  No, we would wish the opportunity of putting

submissions to the Court of Appeal about what a

proper order would be, an opportunity never

afforded to us, and the result, in our submission,

reflects that. It is an unprecedented purported

use of discovery power to achieve, by use of
conditions, something which the rules just do not

contemplate. Now, we would wish to put that to the

Court of Appeal and would wish to have instructions
as to what alternatives might be proposed and so

on.

BRENNAN J: Well, I understand that as an approach that

would be taken by those who are concerned to

protect the litigating interests of the present

applicants, but I must say, I rather thought that

this was the court's response to an argument on the

applicant's behalf that there was an interest to be

considered, namely the interests of blood donors,

in particular the interest of blood donor 061.

MR GYLES: Well, Your Honour, therein lies one of the

difficulties of the Court of Appeal's approach.

They say, "We do not consider that", and they did

not.	When they come to the letter, and so on, one
is driven to the conclusion they have read the

material, of course. But it was not dealt with as

a matter of reasoning - never faced up to it.

BRENNAN J:  I understand that, but as I understand, what

these are designed to do, they are to give such protection as the court thinks appropriate to a

party who is not before them.

MR GYLES:  Yes, but, Your Honour, with all sorts of

consequences which Their Honours never explored

with the parties here.

BRENNAN J: Well, that might be so, but your complaint is,

and is limited to, the adverse effect, from the

point of view of the litigation, on the Red Cross

Red Cross 20 4/2/93

Society; that the plaintiff is getting an unfair

advantage against you.

MR GYLES:  Yes, indeed, but we say - I mean as to these orders, Your Honour - - -

BRENNAN J: Yes.

MR GYLES:  We say that first of all there is an unfair

advantage but, secondly, we say that it is by no

means clear that the result of a proper
consideration of the evidence about the effect upon
the person with AIDS would not be radically

disturbed by this sort of order going out or

letters to social workers.	I mean, the
consequences were never explored.	It did not enter

the head of anybody in the Court of Appeal, as

would understand it, that this sort of order would

be made. There may be the most serious

consequences which would flow from this - never

explored.

BRENNAN J: What interest, from the litigating point of

view, is that of yours?

MR GYLES:	Because, Your Honour, we have an interest in, not only in our narrow position as a litigant, although
we do wish to protect that, we have the interest
which we have sought to protect at all times to
inhibit the supply of blood.

BRENNAN J: Yes, I understand that.

MR GYLES:  And the deleterious effect upon those who have

the disease and who have been donors. Now, without

evidence, Your Honours, it is, with respect to

Your Honours, a staggering thing to have done this

without - who knows what social workers are or

counsellors - - -

DEANE J: But the plain fact of it is the plaintiff could

voluntarily do everything that the Court of Appeal

has required her to do. In so far as the order goes beyond a simple form of order of discovery against your client, it only imposes restrictions

on the plaintiff.

MR GYLES:  Indeed, Your Honour, but implicit in this must

surely be that Their Honours saw a need for such

protection. In other words, it is a qualified

order. Surely one needs to have some proper basis

for qualifying an order in this way.

DEANE J: But all I am saying is if all the Court of Appeal

has done is to require the plaintiff to do what the

plaintiff is perfectly free to do anyway, what is

your complaint?

Red Cross 21 4/2/93

MR GYLES: But, Your Honour, they are not free to do it

absent this order. The order is conditioned upon

this.

DEANE J: Presume that the Court of Appeal, having said,

"We're going to make an order for discovery - - -

MR GYLES:  - - - whatever happens".

DEANE J: They have said that, and they have then said, "Now

let's look at the conditions and we're going to put

all these restrictions on the plaintiff".

MR GYLES: In my submission, that is mere semantics. If you

say, "I will make an order on these conditions",

surely you are saying these conditions are

necessitated by the circumstances, and thus they

did not really say, "We are going to make an order

willy-nilly".

DEANE J:  I do not read it that way. I read it as saying,

"We'll make an order for discovery because the

plaintiff is entitled to it and we'll now set about

framing that order in the way we think can best

protect D61", is it?

MR GYLES:  Your Honour, even let that be so, our submission

is that really they are processed for something

different. But let me assume that to be so, is it

not proper that the other party to the litigation

who has an interest recognized by all the courts as

legitimately put forward in the public interest as

well as their own narrow interest - is it not right

that they should have the opportunity of

considering the alternatives, and indeed leading

evidence about it, putting submissions about it?

It is an unprecedented order.

Under the circumstances, I submit that to do

it without elementary natural justice in the broad

sense - and I mean the narrow sense - is a special	leave point. If Your Honours do not intervene,
nothing else can achieve the purpose.
Your Honours, they are our submissions.

DEANE J: Is your junior suggesting that I am wrong in

saying it was confined to what the plaintiff could

do in any event? I would be grateful to be told I

was wrong.

MR GYLES:  The assistance was not on that point,

Your Honour.

DEANE J:	I see.
MR GYLES:	We are limited to what they said in their

judgment, rather than - because there was no debate

Red Cross 22 4/2/93

upon the point, as I understand it, below, so we are

limited in the way Your Honour is limited. If

Your Honours please.

BRENNAN J: Yes, Mr Semmler?

MR SEMMLER:  Your Honours, the applicant in this case is

seeking leave to appeal against what is
discretionary, interlocutory decision on a matter
of practice and procedure. It seeks to do so,

Your Honours, in circumstances where the plaintiff is a dying woman, who is an innocent victim of a

tainted blood transfusion, who, if this application

is successful and if the appeal is upheld against

the order made by the Court of Appeal, will be

deprived of evidence which is critical to her case·

on liability.

Your Honours, the applicant is making this

application in circumstances where any further

delay in allowing the plaintiff access to this
material to which the defendant has access, could
be very prejudicial to the plaintiff's prospects of

success in this sense, that both the plaintiff and

061 have Category 4 AIDS. Both of them are dying.

The donor, 061, had that condition, at least the

HIV condition, before the plaintiff. We know the

plaintiff has a life expectancy of 6 to 18 months,

and this is an unpredictable disease. It is most

difficult to ascertain precisely how long one is

likely to live in Category 4, but we do not know,

at least the plaintiff does not know, how long 061

has to live. So that any further delay could

potentially be prejudicial.

I can explain to Your Honours why this

evidence is so important, if that is necessary, and

not immediately apparent to Your Honours.

DEANE J: Is the trial date of March still extant?

MR SEMMLER: Yes, Your Honour, 16 March.

DEANE J: And the plaintiff plans to proceed on that day?

MR SEMMLER: Yes, Your Honour. Your Honour, it is not only

this case. The New South Wales Supreme Court last

Friday ordered that three other cases be heard

together, cases where we have not had a chance to

have discovery but because of the urgency of these matters, and the fact that they are very expensive matters to litigate, there are experts coming from

the United States to give evidence about the

critical issues of foreseeability and precautions

that could have been taken, which experts, I might
add, Your Honours, need the information which we

are now seeking which the Red Cross have and which

Red Cross 23 4/2/93

the plaintiff does not have, and yet they cannot

have it until this order is complied with. And the

other three cases, Your Honour, we have not even

had discovery. We have not got that information.

We are waiting to get the information in this case

and we have only just been ordered to have these

cases heard together. It is in the interest of

cost saving, Your Honours.

But this application is being made not only in those circumstances, Your Honour, but it is being

made in circumstances where the Court of Appeal

has, with respect, carefully and sensitively

drafted orders which can only be said to be very

restrictive on the plaintiff's entitlement to have

information that in other circumstances the

plaintiff would have a right to have, it being

information relating to a relevant witness, and would have the right to interview that witness.

These are the circumstances: the New South

Wales Court of Appeal has gone to great lengths, if Your Honours read the letter - if Your Honours read

the orders that they have made - to protect the

very interest that was being argued - at least part

of the interest that was being argued by my learned

friend's predecessor in the Court of Appeal and

before His Honour Mr Justice Newman, and in

circumstances, Your Honours, where Parliament, it

is quite clear, has already considered the

significance of the matters that are now being

raised before Your Honours and were raised before

the Court of Appeal. The Parliament of New South

Wales has specifically authorized disclosure of

this kind of information in this kind of

circumstance.

Your Honours, of course, it is an important -

the issue of the blood supplies integrity - - -

BRENNAN J: When you say it is specifically authorized, you

mean it has not precluded confidentiality?

Yes, Your Honour, that is, with respect, more

precisely putting it. When the Court of Appeal

talked about "blanket immunity" and how a blanket

immunity approach could not be justified, what they

were saying was that given that the Parliament in

section 37 of the Human Tissue Act has said, on the

one hand steps must be taken to keep the identity

of blood donors secret, but on the other hand there

are circumstances in which that identity may be

revealed, it is simply not appropriate to say,

"Well, this fear of the Red Cross about the effect

on the blood supply of breaching donor

confidentiality is something to which a blanket

Red Cross 24 4/2/93

immunity must be applied so far as disclosure is

concerned" .

As Your Honour the presiding Judge correctly

pointed out, with respect, that is the point of

this. The Red Cross, before the trial judge and

before the Court of Appeal, made quite clear, and

it is apparent from the judgment, that their fear -

Dr Wylie expressed this and it was expressed

through their counsel - was that if the

confidentiality of their donors could not be

maintained the blood supply might be affected.

That was said by Dr Wylie on behalf of the Red

Cross in evidence and yet it was a statement made

on a completely false premise: that is, that this

could not occur already. Clearly it can have
occurred, the potential has been there for
breaching that confidentiality since 1991, since

the Parliament enacted this legislation. He,

himself, on behalf of the Red Cross, was clearly

unaware of legislation that is critically concerned

with his client in particular. If Your Honours

read the provisions of section 37, that is quite

apparent.

Similarly, His Honour Mr Justice Newman was

under a misapprehension. At least it was not

brought to his attention that there was this

countervailing consideration that significantly

affected the weight which anyone could place upon

the survey evidence results because, if one can use

the vernacular, it exploded the myth that these

things could not occur already.

These respondents to this survey were asked,

"What would you do if these things might occur, if

they were to occur in the future?" Of course,
there was a certain percentage who said, "We would

be disinclined to give blood". But what was not

ever put to them in the survey was, "Are you aware

that this can happen already?". Indeed, not only

could it happen by operation of the New South Wales

legislation, but it had happened by the time this

survey was carried out in Victoria by reason of the
Full Court's decision in the case of BC and the

Australian Red Cross where the Court decided that

limited disclosure was permissible.

There was no evidence, Your Honours, before

Mr Justice Newman or before the Court of Appeal

called by the Red Cross to say that this order of

the Victorian court had had some kind of

catastrophic effect upon the blood supply, none

whatsoever, and yet the order had already been made

and it has been made. There was a survey done

without reference to that fact.

Red Cross 25 4/2/93

The survey was done without reference to the

fact that the presumptions that were being put to

the respondents to the survey were based on a false

premise, and it was because of that fact having

been brought to the attention of the Court of properly, took the view that the difficulty that

His Honour Mr Justice Newman had in weighing up the

competing considerations was not a difficulty that

they would have.

If Your Honours read His Honour's judgment, it

is full not only of reservations about the possible

effect on the blood supply, but reservations about

whether what he was about to do and in fact did was

really the correct thing to do in the

circumstances. The closing words of his judgment

make that clear. The word has been left out of the

transcript, but he says:

Accordingly, I confess with some -

and then there is a blank -

I dismiss the plaintiff's motion -

Presumably it was a word such as "reservations" or

"concerns" or whatever. The reason why he had

those reservations was that this was a very evenly

balanced public interest immunity consideration.

On the one hand there was a powerful interest - and

there always is, Your Honours, with respect - in
the proper administration of justice. It is a

paramount principle of the civil litigation system

that litigants should not be denied access to

relevant material, particularly material which is available to another litigant in the same action.

His Honour had difficulty with the matter

because it was evenly balanced. The reason why the

Court of Appeal was justified in taking the step that it did was because there was now injected into	the process, placed on the scales on the
plaintiff's side, a far more weighty consideration,
something that clearly outweighed the hearsay evidence that had been admitted as part of the defendant's case. That was that that evidence
itself, which was the sole basis on which His Honour decided in favour of the defendant, was
based on a misapprehension. There was a false premise which formed its basis and once the Court
of Appeal was aware of that, the case was clearly
one where the balance came down fairly and squarely
on the side of disclosure of this information.
His Honour Mr Justice Newman recognized that in his judgment where he said there must be few

Red Cross 26 4/2/93

cases where the paramount interests of the

administration of justice must give way to some

other public interest and as Your Honours would no

doubt be more aware than I, that if one looks

through the law reports there are very few cases

where the public interest immunity consideration,

in various circumstances, has been upheld. Both

here, in the United States, in Canada, and if

Your Honours ultimately hear the appeal,
Your Honours will here about these cases, but time and time again in blood transfusion cases this

point is taken; time and time again the courts here

and in other parts of the world say, "Yes, we

recognize the risk. We can accommodate that. We

can balance the competing considerations by the
kind of complicated, sensitive, restrictive orders

that the New South Wales Court of Appeal has made

in this case" .

The Victorian Full Court had no difficulty in

that it had similar - it had some survey evidence

before it. It in BC reached the conclusion that

notwithstanding that, it could make the order and

it proceeded to do so, and there was no - - -

BRENNAN J: What is the reference to BC?

MR SEMMLER:  I have copies it, Your Honour. It is an

unreported decision of the Supreme Court of

Victoria Appeal Division dated 7 March 1991.

Could I take Your Honours particularly to

pages 10 and 11 of that judgment? What happened in

that case, Your Honours, was that the trial judge

had some evidence of a less sophisticated survey

than was tended in this case, but hearsay surveys,

I recall nevertheless, it was admitted. But he

took the view, notwithstanding the survey, that the

interests of the plaintiff, and the interests of

the proper administration of justice, outweighed

this suggested risk to the blood supply.

In the Full Court, at the bottom of page 10,

the last paragraph - it is ironical, Your Honours,

but the court noted the very situation which arose

in this case, that the provisions of the comparable

Victorian legislation had not been brought to the

attention of the trial judge, as I understand it,

and I will read it to you, Your Honours:

These provisions and their predecessors,

which were introduced retrospectively in 1985,

appear to implement a deliberate public policy

that poses a threat to a donor that

information given to the Red Cross will not be

kept in confidence but will be revealed and

liable to be the subject of prosecution,

Red Cross 27 4/2/93

punishment and attendant publicity, if a

statement in the prescribed form is false in a

material particular.

Having not been referred to these

provisions His Honour is likely to have tended

to have over-estimated the weight of the

public interest relied on by the Red Cross.

However, it is not necessary for the purposes

of my decision to rely on that.

Your Honours, it was not necessary for him,

but His Honour, with respect, has neatly summarized

precisely what the Court of Appeal in New South

Wales then did last month. It, again, having

realized that a critical, or very relevant piece of

legislation had not been referred to the judge who

made the decision, Justice Newman - it then

decided, in the balancing exercise which it was

required to carry out under Sankey v Whitlam, it

decided that His Honour probably did overestimate

the weight of the public interest relied on by the

Red Cross, based on that survey result, because he

had not been referred to this legislation which, in

effect, shows that re·gardless of this case, donor

confidentiality cannot be maintained by reason of

the holes in the blanket, if I can put it way,

which the legislation itself has introduced.

So, Your Honours, in Victoria, of course, in

that case, the order was made and the appeal by the

Red Cross was dismissed without the need, in

effect, to invoke this legislation, although

His Honour in that passage made quite clear it would diminish any weight to be attached to that

kind of a survey.

Your Honours will see, if Your Honours read

His Honour Justice Newman's judgement at page 7 of

the application book, His Honour said, at line 30: However, like Cummins Jin BC's case -

Mr Justice Cummins having been the trial judge, or

the judge who heard the application -

I would not, if his evidence was standing

alone -

and he is referring to Dr Wylie's fear about the

blood supply -

be persuaded any further than he was as to the

extent of the risk which ultimately is

reflected in the public interest immunity

point. But here Dr Wylie's evidence does not

stand alone.

Red Cross 28 4/2/93

Then he goes on to talk about the survey.

DEANE J:  It probably has nothing to do with this, but is it

the same D61?

MR SEMMLER:  No.

DEANE J: It is not? It is just a coincidence, is it?

MR SEMMLER:  No, it is a pure coincidence, Your Honour, it

is obviously an unlucky number.	Your Honours, it
is a different person.	Your Honours, the point

about His Honour Justice Newman's judgment is, if you read it, it is quite clear - this was never a

case where the balance clearly came down on one

side or the other, it was always a borderline case

and His Honour had the reservation, even though the

word was not used in the last paragraph of his

it.	judgment, he had very significnt reservations about
The Court of Appeal was justified in exercising their discretion in the way that they
did because they had before them, and were aware
of, the legislation and were aware of the
significance of it. Your Honours, my learned friend has taken you to the relevant passage.
The most relevant provision is section 37 of the Human Tissue Act, which makes quite clear,
Your Honours, that there is an interest, and no one
would deny that there is an interest in donors
having anonymity, but it makes quite clear that
there are various circumstances in which Parliament
has considered that that interest can be overcome,
but there may be other circumstances which justify
a breach of that confidentiality.

Your Honours, if you look at section 37(3)(c),

one of those circumstances, curiously, is if the

disclosure of the information is in connection with
bona fide medical research.	Now, if Your Honours

compare that situation that Parliament contemplated

with the situation in this case, the compelling

need and justification for a court, as the Court of

Appeal did, to decide that the public interest in

the administration of justice should override this

prima facie interest of blood donors in having

their names kept confidential, is quite apparent,

because by comparison the plaintiff's need in this

case, the critical aspect of that need - there is a

real risk that she will lose this case without this

evidence, without being able to prove the causal

connection between her allegation of negligence, of

proper failure to warn and being able to prove that

if the donor had been properly screened and warned

himself, he would have acted in a particular way.

Red Cross 29 4/2/93

She runs the risk of losing the litigation. How

much more significant, Your Honours, is that than a situation where Parliament says, "Well, these names

can be disclosed in connection with bona fide

medical research."

Your Honours, if Parliament contemplates that

kind of situation as justifying disclosure or as

being a circumstance within which disclosure must

take place, then how compelling is the need and how

justified was the Court of Appeal in saying that

disclosure ought to be made in this place, even

considering the hearsay evidence which was allowed

in relation to the possibility of a threat to the

blood supply.

Your Honours, there is no point of law of public importance in this case. The issue of the

blood supplier's integrity is no doubt an issue of

public importance. One could not cavil at that

proposition, but there is no point of law of public

importance. This is, as I said at the outset, a

discretionary interlocutory decision against which special leave is being sought to appeal in respect
of a decision taken on the particular facts of the
case. There is no suggestion that any wrong
principle was applied. Everyone agreed, as did the

Court of Appeal, that the proper test was the

Sankey v Whitlam balancing exercise and

notwithstanding what my learned friend has said, that is precisely the exercise that the Court of

Appeal applied.

What it did, however, was to say, on the

evidence that was before His Honour Justice Newman

there was some uncertainty and that is reflected in

His Honour's judgment, and we share the concerns.

There are valid criticisms to be made of this

survey evidence, but there is also something that

can strongly be said about - or there is something

disturbing about some of these results, but then

they said, "We have some additional considerations

which affect the weight of that evidence that was

taken into account."

So that it is a case that was decided on its

own facts and other cases would be decided on their

own facts, no doubt on similar questions of

disclosure in a particular case, but there is no

point of law of public importance, there is no

question of any conflict between States as to the

interpretation of similar legislation. Indeed, the

only other case is that the judges reach the same

conclusion as the Court of Appeal and, indeed,

judges in the United States have reached exactly

that conclusion.

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Your Honours, so there is no question of

principle. There is a question on its facts, it is

an interlocutory decision. The fundamental issue

however, Your Honours, is that it was always a fine

balancing exercise. The Court of Appeal was

justified in accepting precisely what the

Parliament has said in the Human Tissue Act, that

there are circumstances in which - - -

BRENNAN J:	I think you have made that point, Mr Semmler.
MR SEMMLER:	Yes, Your Honour. Well, Your Honour, they are the submissions of the respondent.
BRENNAN J:	Mr Gyles?
MR GYLES:	May I just make a few points shortly,

Your Honours.

First of all, my friend says this is a matter of practice and procedure. On an interlocutory

basis that is true, but the issue which arises here

will always be such an issue, and if there is an

error in principle in approaching it then we submit

that it is appropriate for the High-Court to

intervene.

Secondly, Your Honours, my learned friend has

said much about this being necessary for the case.

Your Honours have not heard argument about that, and I have not addressed that issue, but it was an

issue argued by us before the Court of Appeal, and

we would wish to do so, either here or in the

Court of Appeal if an appeal is granted, because it

is a question of deciding in truth, on the facts of
the particular case, and this case is different to
the Victorian case, whether the forensic necessity
for it really exists in the way my learned friend

put forward.

I note the case was started in early 1991

without this material, presumably because they

thought they had a good case, and three other cases

are being heard at the same time as this one,

without this material. So that Your Honours should

not assume, because of my friend's advocacy, that it is necessary in the strict sense for his case.

Your Honours, my learned friend put that there

was no evidence that the Victorian position was

different after Re BC. On the contrary, Dr Wylie

gave evidence in the Court of Appeal that the

supply of blood in Victoria had been less since

that decision. That was an issue which was put to

him and he did give evidence about it.

Red Cross 31 4/2/93

More fundamentally, the position which my

learned friend's submission exposes the following -

before Mr Justice Newman, I am sorry. The position

that is being put is this:  Mr Justice Newman

accepted evidence, both from Dr Wylie and from
surveys, which established the proposition of
detriment to the blood supply. That was challenged
in the Court of Appeal, and that finding was not

set aside by the Court of Appeal. They had some

reservations about the survey evidence but not set

aside. What they did say was the legislation,

which has the capacity to have disclosure under

certain circumstances, excludes or ends the case.

My learned friend, faced with the difficulty of supporting that, says what they really meant was

that the survey evidence was based upon a false

premise. It is not a bad argument except that it

was not put by the Court of Appeal as part of their

judgment and, more importantly, was never put to

any of the witnesses that were called before the

Court of Appeal.

Your Honours have not seen the survey;

Your Honours have not seen the evidence. It was never suggested to any of them that there was a

flaw in it because of this ability, under very

extreme circumstances, to order disclosure and for

all we know that was a circumstance well known to

everybody. So that my friend's attempt to support

the Court of Appeal by a piece of reasoning they

did not advance, in my submission, cannot succeed
and, indeed, if the Court of Appeal did base

themselves on that view they did so in breach of

the rules of natural justice because they did not
put that to anybody who could have given the

evidence. The Court of Appeal are not experts in

surveys, they are not experts in what effect

something will have upon the mind of a blood donor;

they had no evidence about it; they had no basis

to act.

Your Honours, the Victorian decision is

referred to. If Your Honours are looking at that,

might I give Your Honours the benefit of

Mr Justice Cummins' decision below, because this

decision was referred to by His Honour

Mr Justice Newman. It was referred to him and as

Your Honours will see from page 18 of the judgment,

His Honour Mr Justice Cummins did look at the two

statutes in issue in Victoria.

It was not, as my learned friend said, that he

had not been referred to them.	He had been
referred to the two statutes.	He mentioned a

number of sections. The Court o·f Appeal said he

did not mention other sections. I do not know

Red Cross 32 4/2/93

whether one presumes that he did not look at them

because he did not refer to them, but none the less

this very legislation with the mirror in New South

Wales is referred to. Neither he nor the Full

Court in Victoria took the view that that ended the matter or that that put aside all questions of balancing.

Your Honours would not assume that the factual

situation in the Victorian case was on all fours

with the factual situation before

Mr Justice Newman. Indeed, His Honour, having

taken into account fully what was said here, took
it into account and said, "The facts before me are

different". So that we respectfully submit that

the issue was fully and properly fought before him·

and the Court of Appeal have erred in principle in

doing what they did.

My learned friend also on several occasions

said that other courts in other places have made

similar orders. Your Honours, for every decision

he can cite one way, my learned junior has a list

of cases the other way. It is an issue all round

the world and it is far from correct to suggest

that the answer is one way; on the contrary. we

would submit that is a sound reason for having the

issues in this case examined in this Court, at

least so far as principle is concerned. If all it

means is that the Court of Appeal have to now go

back and do a proper balancing exercise, that is,

in our submission, the required remedy.

In so far as the March hearing date is

concerned, Your Honours, it would be wrong, bearing

in mind that proceedings were started, I think,

prior to April last year, informal discovery not

ordered until December, this application not made

until December, as I understand it, it would be

wrong to weigh in the scales, in my submission in

difficult to have this Court hear an appeal in	those circumstances, the fact that it would be
time. That is the plaintiff's making, it is not the Court's making, and I would respectfully submit
that should not be a factor which would weigh on
Your Honour's mind as to the grant of special
leave. If we have established a case of special leave, then no doubt one way or another the
procedures can be moulded to meet it, and the fact
that there was an unexplained delay in this
application should not influence Your Honours'
minds against a grant of special leave. If Your Honours please.

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BRENNAN J: The Court will adjourn briefly to consider what course it should take.

AT 3.54 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.00 PM:

BRENNAN J: The application for special leave does not

challenge the correctness of the legal principle

which was common ground between the parties,

namely, that the making of an order to compel the

disclosure of a blood donor's identity depends on

the balance struck between the public interest in

the administration of justice and the interests of

the plaintiff on the one hand, and the public
interest in protecting the supply of blood and the

interests of blood donors on the other.

The applicant submits that the Court of Appeal

did not correctly apply that test and misunderstood
the significance of the confidentiality provisions

of the Hu.man Tissue Act 1983 (NSW), and Part 3 of

the Public Health Act 1991 (NSW). We do not

understand their Honours to have regarded the

legislation as conclusive of the order which should

have been made. Rather, we understand

their Honours to have addressed the balancing

exercise and to have considered the legislation as

bearing upon the factor which the applicant had

relied on before Mr Justice Newman. That factor

was the "shield of confidence" which the applicant

could assure blood donors that they would have.
Clearly no absolute assurance could be given.

As we read the judgment, their Honours found on balance that an order for disclosure should be made. Without endorsing all that their Honours

said in reference to the legislation, we do not	think that there was any error of principle
affecting the decision which they reached.
The subsidiary question as to the form of the order is not one which should attract the grant of
special leave in all the circumstances of this
case. Accordingly, special leave will be refused.

MR SEMMLER:  I would seek costs, Your Honours.

BRENNAN J:  Do you have anything to say? Special leave

will be refused with costs. Adjourn the Court.

AT 4.02 PM THE MATTER WAS ADJOURNED SINE DIE

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