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AX v Stern

AX v Stern

Case [2008] VSC 400 30 September 2008

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Civil Litigation & Procedure

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AX v Stern

Details

AGLC: AX v Stern [2008] VSC 400
Case: [2008] VSC 400
Decision Date: 30 September 2008

CaseChat Overview and Summary

The case of AX v Stern was brought before the court by the plaintiff, AX, who sought to proceed using pseudonyms for herself and her children. AX, alongside her husband, was suing the defendant, Stern, for alleged negligence in in vitro fertilisation treatment. The court was tasked with determining whether the circumstances justified the use of pseudonyms to protect the identity of the plaintiffs. The application was made under sections 18 and 19 of the Supreme Court Act 1986.

The legal issues before the court involved balancing the right to privacy and the protection of the plaintiffs' identities against the public interest in open justice. The court considered whether the potential harm to the plaintiffs, particularly the children, from the disclosure of their identities outweighed the benefits of open justice. The court also examined whether the plaintiffs had a real prospect of success in their claim and if the use of pseudonyms would assist in achieving a fair trial.

The court found that the use of pseudonyms was justified in this case. It determined that the potential harm to the plaintiffs, particularly the children, from the disclosure of their identities was significant. The court found that the plaintiffs had a real prospect of success in their claim and that the use of pseudonyms would assist in achieving a fair trial. The court noted that the plaintiffs' case involved sensitive personal information and that the use of pseudonyms would protect the identity of the plaintiffs and their children from unnecessary publicity. The court concluded that the circumstances justified the use of pseudonyms.

The court granted the application for the use of pseudonyms, allowing the plaintiffs to proceed with their claim using pseudonyms for themselves and their children. The court emphasised the importance of protecting the identity of the plaintiffs, particularly the children, and the need to balance this with the public interest in open justice. The court also noted that the use of pseudonyms would not unduly prejudice the defendant and that the defendant would still have the opportunity to present a full defence.

Orders