AX v Stern
[2008] VSC 400
•30 September 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 8701 of 2008
| AX & ANOR | Applicants |
| v | |
| STERN & ANOR |
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JUDGE: | WARREN CJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 September 2008 |
DATE OF JUDGMENT: | 30 September 2008 |
CASE MAY BE CITED AS: | AX v Stern |
CITATION: | [2008] VSC 400 |
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PRACTICE AND PROCEDURE – Suppression order – Application by proposed plaintiffs to use pseudonyms for plaintiffs and children – allegation of negligence in IVF treatment – whether circumstances justify use of pseudonyms – Supreme Court Act 1986 ss 18 and 19.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicants | Mr B. Quinn | Slater & Gordon |
HER HONOUR:
This is an ex parte application by proposed plaintiffs seeking orders enabling them to commence and continue a proceeding for damages for personal injury arising from the circumstances of invitro fertilisation treatment received by the plaintiffs that culminated in the birth of twin children. One of the children suffers from what I will broadly describe as a disability as a consequence of the IVF treatment.
The plaintiffs bring a claim in negligence against the treating doctor and the service provider hereafter referred to as the "defendants".
The relevant sections are ss 18 and 19 of the Supreme Court Act 1986. They empower the Court to make an order prohibiting the publication of a report of the whole or any part of a proceeding or any information derived from a proceeding if, in the Court’s opinion, it is necessary to do so in order not to prejudice the administration of justice.
The principles to be applied in these types of cases were at least established in this court as long ago in BY v Australian Red Cross Society & Others.[1] In that proceeding, the defendants made applications for an order that the publication of aspects of the proceeding not be publicised and whilst the circumstances were somewhat different, the principle remains the same to that presently before the court.
[1]Unreported, Supreme Court of Victoria, Vincent J, 31 October 1991.
It is useful to restate the principle expressed by Vincent J in BY as follows:
‘The range of considerations which can be taken into account as possibly affecting the administration of justice is not and I suspect never could be closed. The concept is a multifaceted one carrying both public and private implications. Central to it is the acceptance of the proposition that, as a general rule, the courts of a democratic community must remain open to the scrutiny of its citizens. Clearly there will be circumstances in which through the operation of some supervening principle this will not be possible. The existence of a significant risk that some other value encompassed by the concept of administration of justice may be prejudiced, can provide such circumstance and may on occasions require a court to direct that there be a departure from the ordinary approach. Consistent with the operation of this principle there are the requirements that the courts must carefully scrutinise any application to prohibit publication of proceedings in whole or in part and that no such orders be made unless it is clearly necessary.
Although distinctions can be drawn between criminal cases, civil disputes and those proceedings which possess a specific element of public involvement such as examinations under the Companies Code, no fundamentally different issues of principle arise by reason of these distinctions. The problem remains, as I have indicated, one of balancing the various interests and values involved.’[2]
[2]Ibid, 4.
More recently, Forrest J in ABC v D1[3] considered the relevant principles and distilled seven principles:
[3]ABC v D1 & Ors; Ex Parte The Herald & Weekly Times Limited [2007] VSC 480.
First, that the principal rule is that judicial hearings should take place in open court: publicly and in open view, with no restriction on reporting. This is a fundamental precept underpinning the administration of justice.
Second, that in certain circumstances the administration of justice requires a qualification of the general rule. There will be circumstances where modifications of the general rule are necessarily made to ensure that the administration of justice is not frustrated. These exceptions are many and varied and cannot be prescriptively identified.
Third, that the test to be applied by the court in making a pseudonym order is, to use the words of the statute, whether it is necessary to do so in order not to prejudice the administration of justice.
Fourth, that a court, in determining whether to make a pseudonym order, is entitled to take into account the individual considerations affecting the person seeking the order and balance those against the principal rule of open justice in determining whether the administration of justice warrants the making of the order. Relevant to these individual considerations is whether there is a real risk of the party or witness suffering psychological harm as a result of publication of his or her name or the names of other parties. Also relevant is the real risk of a party not proceeding with an action in the event that he or she or another person is identified.
Fifth, that in certain circumstances, particularly those involving sexual assaults, it may be appropriate not only to suppress the name of the plaintiff but also to suppress the name of the defendant or defendants.
Sixth, that in determining whether to make such an order, a court is entitled to take into account the fact that there will still be a reporting of the proceeding and that the hearing itself will be conducted in open court, subject to the restrictions imposed by the pseudonym order.
Seventh, in determining whether it is necessary to make such an order, usually the proofs must be cogent and will not be satisfied by mere belief on the part of a party that the order is necessary. However, in certain cases a court can, in a practical sense, act on its own experience and draw appropriate inferences.[4]
[4]Ibid [65]-[71].
Further, Kyrou J in another matter, AB v D1[5] considered and applied the principles as stated by Forrest J in ABC v D1.
[5][2008] VSC 371.
The circumstances before the court on this occasion essentially are these; the plaintiffs are doctors and, as parents of the children conceived and born as a result of the IVF process, have two‑fold concerns. First, that if the circumstances of their claim came to have notoriety and be known to the children, the children may suffer adverse and unfortunate reactions because of the knowledge of their parents' views and those which prevailed at the time of their conception and birth; in particular, that the parents would have contemplated termination of the foetus of the child now suffering a disability.
The second concern of the plaintiffs is that as professional persons, they fear that in the context of their medical practices they will suffer notoriety and be subject to criticism for bringing these proceedings against members of the medical professional community. They also fear adverse reaction to knowledge of their intended termination of a foetus in their circumstances.
In reflecting on these matters I have had the benefit of considering the affidavit filed by the plaintiffs. The critical affidavit is that filed by the solicitor for the plaintiffs in which he deposes he is instructed by the plaintiffs that due to the impact on their professional, social and family life, the plaintiffs are only prepared to proceed with this claim if an order for anonymity is granted.
Reflecting upon the two‑fold basis upon which the application is brought, I am not persuaded with respect to the second aspect of the application, namely the impact on the professional lives of the plaintiffs. It seems to me that in the course of day‑to‑day litigation that is a consequence that professional persons must face. However, the first, and it might be said primary, aspect of the application is based upon the impact on the two children of the plaintiffs and the potential or actual circumstances that may flow. That of itself is an acceptable and conceivable circumstance and can be readily understood to be one which might drive the plaintiffs to conclude that, in the absence of anonymity, they would not institute the proceedings against defendants.
Weighing these matters up it seems to me clearly to be a basis upon which an order for anonymity should be granted in the interests of justice.
Accordingly I will make orders as sought on behalf of the plaintiffs. In particular I emphasise that the orders are made subject to "further order". The judge or judges who subsequently deal with this matter, if they form a different view, will make an appropriate order in the circumstances. Accordingly I will make orders as sought.
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