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J v L & A Services Pty Ltd (No 2)

J v L & A Services Pty Ltd (No 2)

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Case Copied 15 February 1993 70 min read

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IN THE COURT OF APPEAL	[1993] QCA 012
SUPREME COURT OF QUEENSLAND
Appeal No. 135 of 1992
BETWEEN:

J.

First Respondent/Plaintiff

AND:

L. & A. SERVICES PTY. LTD.

Appellant/First Defendant

AND:

DRS. J.J. SULLIVAN,
N.J. NICOLAIDES & PARTNERS

Appellants/Second Defendants

AND:

WORKERS' COMPENSATION BOARD OF
QUEENSLAND

Appellant/Respondent

Appeal No. 136 of 1992

BETWEEN:

R.

First Respondent/Plaintiff

AND:

L. & A. SERVICES PTY. LTD.

Appellant/First Defendant

AND:

DRS. J.J. SULLIVAN,
N.J. NICOLAIDES & PARTNERS

Appellants/Second Defendants

AND:

WORKERS' COMPENSATION BOARD OF
QUEENSLAND

Appellant/Respondent

Appeal No. 137 of 1992

BETWEEN:

J.

First Respondent/Plaintiff

AND:

L. & A. SERVICES PTY. LTD.

Appellant/First Defendant

AND:

DRS. J.J. SULLIVAN,
N.J. NICOLAIDES & PARTNERS

Appellants/Second Defendants

AND:

WORKERS' COMPENSATION BOARD OF
QUEENSLAND

Third Respondent/Respondent
Appeal No. 138 of 1992

BETWEEN:

R.

First Respondent/Plaintiff

AND:

L. & A. SERVICES PTY. LTD.

Appellant/First Defendant

AND:

DRS. J.J. SULLIVAN,
N.J. NICOLAIDES & PARTNERS

Appellants/Second Defendants

AND:

WORKERS' COMPENSATION BOARD OF
QUEENSLAND

Third Respondent/Respondent

REASONS FOR JUDGMENT - PRESIDENT AND LEE J.

Delivered the fifteenth day of February, 1993

The respondents to this appeal, a married couple with teenage

children, have sued their employer and an associated group of medical
practitioners for breach of contract of employment, negligence and breach
of statutory duty. The defendants, together with the Workers' Compensation
Board of Queensland, (the "appellants") have appealed to this Court against

orders made in the Trial Division on 3 July 1992.

So far as presently material, those orders are as follows:

"1. The Plaintiff be at liberty to commence proceedings in this
Honourable Court against L & A Services Pty. Ltd. and Drs. J.J.
Sullivan N.J. Nicolaides and Partners ("the proceedings") so
that the Plaintiff be not referred to therein by name, but by
the reference "J";

2.

All documents filed and served subsequently in the proceedings identify the Plaintiff by the reference "J", save for the jurat of the original of any affidavit required to be sworn by the Plaintiff.

3.

The Plaintiff's solicitors serve upon each of the Defendants to the proceedings and upon the Workers Compensation Board of Queensland, at the time of service of the Writ -

(a) a copy of this Order; and
(b) written notice of the name and address of the Plaintiff.

4.

Except to the extent necessary for the preparation of the parties' cases and on the undertaking first obtained of the person to whom the matter is published not to republish the matter, publication be prohibited of or any report of:

(a) the commencement of the proceedings by the Plaintiff;
(b) the hearing of this Application;

(c)

the contents of the affidavit in support of, and the Order made in, this Application;

(d)

the Statement of Claim or any subsequent documents in the proceedings, or any information derive [sic] therefrom;

(e)

the hearing of any interlocutory process in the proceedings; or
(f) any other matter relating to these proceedings,

to the extent only that publication might tend to identify the Plaintiff or the name, address or occupation of the Plaintiff.

5.

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.

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Details

Case: [1993] QCA 12
Decision Date: 15/02/1993

CaseChat Overview and Summary

In the case of J v L & A Services Pty Ltd (No 2), the Court of Appeal was called upon to decide whether the orders made by the Trial Division, which restricted the publication of the identities of the respondents, should be upheld. The respondents, who were employed as scientists in a pathology practice, alleged that they contracted the human immunodeficiency virus (HIV) while handling biological specimens and reagents in the course of their employment. They sought damages for breach of contract, negligence, and breach of statutory duty. The primary judge made the orders reluctantly, out of deference to decisions by judges in other States, and expressed concern at the possibility that there would be an increased practice of making such orders.

The Court of Appeal found that the orders should not be upheld by the court on the basis of comity, as there was not yet an established practice of prohibiting the identification of plaintiffs in such proceedings. The court acknowledged that court proceedings are ordinarily open to the public and may be the subject of fair and accurate reporting and discussion. It was also common ground that the openness of proceedings generally extends to access not only to hearings but also to court records in accordance with appropriate court rules. The dispute for resolution on this appeal centred upon the nature and scope of the court's power and its proper exercise in the circumstances of this case.

The Court of Appeal concluded that the principle of open justice is fundamental to the administration of justice, and that the public nature of court proceedings serves to maintain public confidence in the integrity, fairness, and efficiency of the system. The court held that there was insufficient justification to warrant a conclusion that the orders made by the primary judge were necessary to secure the proper administration of justice. The appeals were allowed, and the orders set aside after a period of 28 days to allow the respondents an opportunity to seek special leave to appeal to the High Court if they are minded to do so. The respondents were ordered to pay the taxed costs, including reserved costs, of the proceedings below and of the appeals.

Orders