J v L&A Services Pty Ltd & Ors; R v L&A Services Pty Ltd

[1993] HCATrans 193

~

.

• 'I

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B9 of 1993

B e t w e e n -

.J.

Applicant

and

L & A SERVICES PTY LTD

First Respondent

DRS J.J.SULLIVAN,

N.J. NICOLAIDES. & PARTNERS

Second Respondents

THE WORKERS' COMPENSATION

BOARD OF QUEENSLAND

Third Respondent

Office of the Registry

Brisbane No B10 of 1993

B e t w e e n -

B

1	2/7/93
THE WORKERS' COMPENSATION BOARD OF QUEENSLAND

Applicant

and

L & A SERVICES PTY LTD

First Respondent

DRS J.J. SULLIVAN,

N.J. NICOLAIDES & PARTNERS

Second Respondents

Third Respondent

Applications for special leave

to appeal

TOOHEY J

GAUDRON J

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 2 JULY 1993, AT 11.51 AM

Copyright in the High Court of Australia

MR F.L. HARRISON, QC:  May it please the Court, I appear

with my learned friend, MR M.J. HALLIDAY, for the

applicant in each matter.	(instructed by Chan and
Coutts)

MR V.K. COPLEY, QC:  May it please the Court, I appear with

my learned friend, MR M.W. FORDE, for the first and

third respondents. (instructed by Clayton Utz)

MR P.V. AMBROSE: If it please Your Honours, I appear for

the second respondents.	(instructed by Heiser
Bayly & Mortensen)

TOOHEY J: Yes, Mr Harrison.

MR HARRISON:  If the Court pleases, I think Your Honours have been provided with bundles of some cases. In

addition, we seek to rely on a further affidavit of

Mr Chan, copies of which are included, which

establishes that orders similar to the order made

here have been made in the New South Wales,

Victoria, the Federal Court, and Western

Australia - over 100 in Victoria have been made and

a large number in the other States. That is as far

as Mr Chan's affidavit goes, other than simply

setting out that the material relied on is in

effect similar to the material relied on here in

support of such an order.

2/7/93

TOOHEY J: Mr Copley, do you want to say anything about the

affidavit?

MR COPLEY:  No, we do not, may it please the Court. We note

that the material is hearsay material on the face

of it, but we have no other submission to make.

TOOHEY J: Mr Ambrose, do you want to say anything about the

affidavit?

MR AMBROSE:	No objection.
TOOHEY J:	Yes,_ Mr Harrison.
MR HARRISON:	If the Court pleases, this is an application

for special leave to appeal from a majority

decision of the Court of Appeal which allowed

appeals from the orders of Mr Justice Thomas.	In
summary, Mr Justice Thomas' orders allowed the
applicants to commence and conduct proceedings
under pseudonyms and prohibited publication of

matters relating to the proceedings to the extent

that publication might tend to identify them except
to the extent that publication was necessary for

preparation of the case. The orders did not

require any hearings to take place in camera and,

apart from the limit of identifying the plaintiffs,

did not purport to prevent the reporting of the

trial.

It is submitted that special leave should, be

granted to resolve the conflict of authority, in

our submission, as to the circumstances in which

suppression of the party's identity may be

permitted, and that this involves the following

issues. First, we have to start, I think, with the

fact that there is authority for the proposition

that, to use the words of the president,

Mr Justice Lee, in the Court of Appeal,

"Information may not be withheld from the public

merely to save a party or witness from loss of

privacy, embarrassment, distress, financial harm or

other collateral disadvantage."

But it is our submission that the HIV cases

such as this go beyond the type of case referred to

in that proposition in these respects: firstly, it

is submitted that the distress in a case such as

this is not from the revelation of things that the

plaintiffs have actually done - that is,

distressing to have made public - but arises from

what, if I may use the words of one of the

deponents for the respondents, derives from the

hysteria surrounding the virus and related illness.

It is not a case involving investigation of some

dubious transaction on the part of the plaintiff.

2/7/93

TOOHEY J: Your complaint, as I read the affidavit in

support of the application and the draft notice of

appeal, really goes to the test applied by the

Court of Appeal, does it not?

MR HARRISON:	Yes, Your Honour.
TOOHEY J:	Is it that which makes, in your submission, this

case appropriate for a grant of special leave?

MR HARRISON:  It is, in our submission, Your Honour, in that

the Court of Appeal, as we read their judgment, did

not allow the matters relating to distress and

adverse affect on the health of the parties to be

weighed against the matter of the need for open

hearings in the court proceedings.

GAUDRON J:  But it is not an open hearing case in any event,

is it, as such?

MR HARRISON:  No, Your Honour.

GAUDRON J: And the question is to what extent those

considerations must inform the principle to be

ascertained in relation to pseudonym cases.

MR HARRISON: Yes, Your Honour. What the Court of Appeal

appears to have done, in our submission, is

to - - -

McHUGH J: Your strongest point is the judgment of the

dissentient, is it not, in the Court of Appeal?

MR HARRISON:  Yes, we would say that His Honour expressed

the principles to be applied in a way that we would

not dissent from in any way.

McHUGH J: That is the principle that you seek to rely on.

MR HARRISON: Yes. The majority, although Their Honours

covered a number of matters of public policy,

appear to have excluded from the matters to be

taken into account these adverse health

consequences and social effects, if I could call

them that, because after a long discussion of the

cases and then setting out five principles that

they say are to be derived from the cases, at

page 87 Their Honours say this, at line 3:

Apart from possible health consequences

from stress associated with publicity, the

request for suppression is based solely upon

social disadvantages which might flow to the

respondents and members of their family if

their medical conditions became known.

Neither stress and its potentially adverse effects nor the prospects of social harm

4   2/7/93

differentiates the respondents from others who

have legitimate cause to wish to avoid

publicity. If any distinction is to be made,

it must be because of matters associated with

the respondents' particular disease.

Then Their Honours go on to investigate -

TOOHEY J:  I might just interrupt you, Mr Harrison, and

perhaps look to you, Mr Copley, at this stage as to

why this matter should not attract a grant of

special leave.

MR COPLEY:  If the Court pleases, these applications are

brought from orders made on appeal from what were

applications for directions. This is from the

record at page 2, line 8. Mr Justice Thomas noted

and considered that the application was a matter

affecting practice of the court and that the

application was interlocutory and that a decision

in relation to whether an order should be made for

suppression, being a matter of practice and

procedure, and referred the court to the judgment

of Justice Deane in Australian Broadcasting

Commission v Parish where he so held.

In accordance with authorities from the court,

we submit that these applications are not

appropriate for the grant of special leave, as they

involve interlocutory orders in discretionary

matters of practice or procedure and exceptional

circumstances are not shown.

TOOHEY J: There is a very important principle underlying

the directions or refusal to give directions in

this case, is there not?

MR COPLEY:  Yes, and that has been considered by the court

and there is no complaint that the court has not

formulated or applied the appropriate tests. All

that has occurred - - -

TOOHEY J:	I thought there was.
McHUGH J:	I think there is.  You rely to some extent on my

judgment in John Fairfax v Police Tribunal in the

Court of Appeal, but Mr Justice Pincus formulates

the principle in a different way. He says there is

a balancing exercise and that on one side of the

balance is a heavy weighting in favour of
publicity; on the other side you have got to

concern yourself with the interests of justice

which in some cases - and he says this is one

- requires you to take into account the damage that

it is done to individuals.

2/7/93

MR COPLEY:  The traditional approach of public justice

involves also a question of fairness to a defendant
and a defendant being able to properly investigate

the matter for trial. The system of public justice

from the common law recognizes that there may be in

certain circumstances distress suffered, but the
price that is paid for public justice is again

formulated in terms that it is a price that someone

who comes to court for money must be prepared to

pay. It is not something which the Court should seek today to encourage adverse reaction against

plaintiffs.

judgment. They have referred to the fact that This is a point that is made in the majority

although recommendations were made by law reform

bodies, they have not been taken up by

legislatures. It has been left to the courts to do

the balancing exercise, and that is what in fact

has been done here.

TOOHEY J: But this order would not prevent your clients

preparing their case for trial, would it? It is

designed in a way to ensure that that does not

happen.

MR COPLEY:  If we might address that point, it is a matter

where the respondents are prejudiced and severely prejudiced in preparing for trial, if Your Honour pleases. Persons are not able to be freely

interviewed, spoken to and investigations take

place in the normal way. Immediately people are

spoken to and asked to give an undertaking not to

tell the name of the person or persons about whom

investigations are being made. It is not

practical. Hurdles are being struck at every stage

in relation to attempting such preparation.

Persons in the community with knowledge of the

plaintiffs who may have relevant information are

unlikely to be located with such an order in

existence. They are unlikely to know that the

proceedings are on foot, their information will not

be brought to the notice of the respondents, and

there is the danger that the proceedings may

miscarry. If there is a different cause for the

plaintiffs' HIV infection, the respondents may well

be thwarted in establishing it. It is a matter

that in cases anonymous tips are given to insurers

- the Workers' Compensation Board - from people who

get to know of proceedings who come forward with

relevant information. With an order such as this,

the likelihood of such people coming forward is

remote.

Further, we would submit that the order

effectively prevents the full, proper and adequate

6   2/7/93

investigation and preparations being undertaken to

meet the claims. The orders amount to the

conducting really of the trial in secret.

GAUDRON J: There may be some difficulty about fashioning an

order, but is not the question really whether there

can be any order, not a particular order? Is the

question not raised - - -

MR COPLEY:  We submit that there should be no order. The

cases that are relied upon, Your Honour, these 100
or so other cases, the material shows the

circumstances in respect of which those orders have

been made. Might I just come to that momentarily.

May I just finish responding to Justice Toohey.

There is a further difficulty flowing on from what we have said and the lack of adequate

preparation being able to be done is that post

trial, there is a stringent rule against allowing

an attack upon a verdict or judgment for a

successful plaintiff on the grounds of fresh

evidence. That would work very unfavourably
against the present respondents. As to the rule,

we refer to the decision of this Court in

Commonwealth Bank v Quade. It would be

particularly so if the defendants are to discover

some fresh evidence, the source was available

pretrial but, because of the order, we have not

been able to get it.

TOOHEY J:  Mr Copley, I did not want to be taken as

suggesting that there were not difficulties in the

way of your clients by reason of the order, but

what I was suggesting was that underlying the

making of an order or the refusal to make an order

are important questions of principle. We are

concerned with whether there should be a grant of

special leave to appeal.

MR COPLEY:  But why I have taken the Court's time

momentarily on this is whilst these proceedings are	on foot, the action at trial is still running, time	is running there, so that the stage may well be
reached where it is said it should go to trial and
the matter is still pending in this Court. That is
why I have taken the time to show the prejudice
which is attendant on the defendants at the moment.

Might I come back to Your Honour

Justice Gaudron in relation to these other cases.

Mr Chan's affidavit that has been lately filed

makes the point that the cases where the Red Cross

Society has supplied or allegedly supplied the

HIV-infected blood, there has apparently grown up

an arrangement that is uncontested by the Red Cross

Society and, we submit, consensual in nature

2/7/93

between solicitors acting in the various States,
for applicants to bring orders pre-commencement of

proceedings for a pseudonym order.

McHUGH J: 

Mr Copley, I do not think, with respect, you are

facing up to the critical question. There is a
very important point of principle involved in this
case. If you apply the test that I formulated in
the Court of Appeal in New South Wales, is the
non-publication order really necessary to secure
the proper administration of justice, it might be
difficult ever to get a pseudonym order in this

sort of case. But if that is not the right test,

if the test is as Mr Justice Pincus followed it,

then in some cases you may or may not.

So there are two questions involved here:

1, what is the correct test in this class of

case, and then 2, assuming that Mr Justice Pincus

has formulated the test correctly, on the facts of

the case should an order be made? There is this

fundamental question of principle which I have not

yet heard you address any argument to.

MR COPLEY:  Thank you, Your Honour. I have been responding

to two questions that have been specifically put to

me. It is our submission that the ordinary rule of

open justice that has been formulated in Scott v

Scott and has been consistently applied, should be

applied and should be applied in the present

circumstances. The fact that there may be suffered

some embarrassment by the current applicants does

not demonstrate any sufficient ground for departing

from the traditional rule, in our submission.

McHUGH J:  I think it is more than embarrassment, is it not?

Regrettably there is a perception in the community

that people with HIV - at least in some sections of

the community - are almost pariahs. So they suffer

more than embarrassment.

MR COPLEY:

The persons to whom the applicants suggested in

the material that their identity only be disclosed

were their legal advisers, the proposed defendants,
medical advisers. But the moment investigations
are conducted, Your Honour, by even utilizing the

procedure of extracting an undertaking, numerous

persons must come to know of their identity. For

the proper preparation of the trial, the

suppression sought by the applicants, even from

their workmates, is totally ineffective because

they have to be approached, the other people

working.

McHUGH J: That might be a strong argument in a particular

case why you should not make an order, but

supposing this husband and wife in this case were

2/7/93

out in the desert and they were doing their work

out in the desert and they had practically no

contact with anybody. That might be a proper case

to make an order. I appreciate what you say, that you want to investigate other causes, whether they take drugs or whether the husband is a homosexual

or something of that nature, you want to
investigate that sort of thing. But that only goes
to the particular facts of the case; it does not go

to the question of principle.

MR COPLEY:  That is a matter for this Court as to whether it

considers that the one view expressed by

Mr Justice Thomas is such that it should run

counter to what is, we submit, a consistent stream

of authority, apart from these special cases in HIV

which are truly consensual in nature where the

orders have been made. Your Honours will note that

at first instance Mr Justice Thomas was not

intellectually convinced that such orders should be

made. He only made them out of a matter of

consistency, I think his word was.

That matter has been fully canvassed and fully

addressed in the majority judgment in an almost

exhaustive review of the cases. If the Court

considers that the dissenting view of

Mr Justice Pincus requires the grant of special

leave, so be it. We submit that the line of

authority, the stream of authority, is all counter

to that. We also submit that there is this

prejudice to the defendants in this case and to the

Board in properly preparing for trial.

McHUGH J: As Mr Justice Brandeis once said, the first

formulation of a principle is not the last

formulation of it. Principles adapt to changing

circumstances and fact and are qualified and

modified and extended, and it may be that this is a

class of case where there has got to be some redefinition of the traditional formulation.

TOOHEY J:  I think what also you have to face up to,

Mr Copley, is that it is not as if the Court of

Appeal reformulated the orders made. As the

present order stands, there is simply no

restriction whatsoever on the ordinary publicity

attendant upon an action in the courts. So it is

not as if there is some midway point that might

have been reached. we are faced with an order that

was made in the form of directions, the setting

aside of that order in accordance with what the
majority took to be an appropriate principle, which
the dissenting judge considered was not the

appropriate principle and which, on the face of it,

is a matter that needs consideration from this

9   2/7/93

Court. It is in that sort of context that we have

to assess the application for special leave.

MR COPLEY:  We would submit that on any of the authorities

and the formulation on which an exception has been

previously formulated, this case does not qualify

as an exception. We refer particularly to the

formulation that the exception to the rule of open
justice is that the exercise of the court's

jurisdiction would be defeated or frustrated if the

proceedings were held in public. That is the

formulation of Justices Brennan, Deane and Gallop

in Tait -.Your Honours have the reference. A

the record at page 46, line 5, that:

similar formulation comes from Lord Diplock in referred to in

the general rule in its entirety would

frustrate or render impracticable the

administration of justice -

and we submit that that cannot be shown by the

applicants in this case. For the Court to allow

special leave in this case is to rework a new

exception which is hitherto unrecognized.

McHUGH J: That may be so, but the difference can only be

one of degree, can it not, between the blackmail
case and this sort of case; you do not reveal the

initials of the blackmail victim; it might be said

that the person who is HIV positive has got an even

greater interest to protect. Publication may have

more detrimental consequences than in the case-of

blackmail.

MR COPLEY:  With respect no, because the person, the victim

in the blackmail case, once the name is exposed,

the very purpose of the criminal is achieved. That

is not the case here.	They still get the damages.
They still get the money that they are seeking.	It
is also significant that these applicants do not
they would not bring the proceedings. They are	say, as did TK in the West Australian case, that
still going to go ahead with the proceedings;
better to be pseudonym orders - - -

TOOHEY J:	You are tending though, I think, to look at the ultimate outcome of the matter, and we are not
seeking to prejudge that, merely to point out the
important principle that underlies the making of the Court of Appeal's order.
MR COPLEY:	May I just refer you to one further formulation as to why there should be an exception, and that is
from the Court of Appeal in the Chief Registrar of Friendly Societies - the new cross-building case -

10   2/7/93

it is referred to in the record, Your Honours, at

page 50, line 16, that:

the applicant must satisfy the court that

nothing short of total privacy will enable

justice to be done. It is not sufficient that

a public hearing will create embarrassment for

some or all of those concerned. It must be

shown that a public hearing is likely to lead,

directly or indirectly, to a denial of

justice.

Now, in our submission, the formulation of

Mr Justice Pincus does not approximate even to

that. The other formulation is that of Your Honour

Justice McHugh, with which the Court is familiar. That formulation is, "Is it really necessary to secure the proper administration of justice in the proceedings?" If the Court pleases, I think that I

have drawn to your attention the authorities and

the points upon which we wish to rely.

TOOHEY J:  Thank you, Mr Copley. Mr Ambrose, do you wish to

make any submissions in this matter?

MR AMBROSE:  Yes, Your Honour. Could I just move to the

microphone?

TOOHEY J: If you would, please.

MR AMBROSE:  Your Honours, one of the reasons this Court

will not give special leave is if the prospects of

appeal are hopeless, of successfully appealing are

hopeless. That is what I will address Your Honours

on. I will take you to 120 of the record, which

formulates the test that the applicants for special

leave say should have been applied. What

Your Honours have to answer is: is this the test

that, on the ultimate appeal, this Court will

apply?

TOOHEY J: That is not the test they are really relying on

now. That is a different test on 120 to what

appears in the judgment of Mr Justice Pincus and,

as I understand it, they now rely on Justice

Pincus's test.

MR AMBROSE: Well, this is the notice of appeal that they

say they intend to rely upon.

TOOHEY J: Clearly we must give our attention to that, but

we must also give our attention to the way in which

the matter was argued.

GAUDRON J: And clearly that is not an all or nothing

proposition either. It is probably putting it at

11   2/7/93

the highest, but it is not - there are

intermediate positions.

MR AMBROSE:  Your Honour, even if it is a balancing act, as

His Honour Mr Justice Pincus put it, never the less

it comes back to whether, on the ultimate appeal,

Your Honours and the other members of the High

Court would consider that publicity by way of the media is a relevant matter of consideration. That

is to say, the overwhelming publicity which is

given, or might be given to cases such as this,

whether that can outweigh the public interest in

the administration of justice. Now, if

Your Honours are not convinced that that will be a

test that will be adopted by the High Court, then

special leave should not be granted. That is what

the matter comes down to.

McHUGH J: Well, speaking only for myself, I have always

formulated and applied the test in a way most

favourable to your clients but I must say that,

after hearing argument, I do not feel in any way

persuaded that I may not modify what I have said in

earlier cases. It seems to me it is a distinctly

arguable point.

MR AMBROSE:  Your Honour, it is not the sort of case where

it is undisputed that the applicants have

contracted the HIV through an innocent method, such

as a transfusion. That is not undisputed. If the

publicity is that, as they would have their case
put, that they were innocent employees, then one

could hardly imagine that there would be any

significant adverse publicity which could affect

them. It would only be those elements of the

community which should not be given sufficient

force or sufficient weight to, so that, those

elements of the community which would be bolstered

by ideas of ignorance. What would happen then is,

by granting special leave, by continuing the

restriction, that those forces of ignorance and

prejudice are given greater weight than they ought.

TOOHEY J: Well, the order itself is not incapable of

variation, as difficulties present themselves in

the course of preparation for or conduct of the

trial if it was thought appropriate, in accordance

with proper principle, but all we are concerned
with here - or at least we are concerned with a

situation in which presently there is no order

imposing any restriction whatsoever on publicity

attendant upon this case. The applicants say that

that is not in accordance with the proper principle

to be applied. The decision for us at the moment

is whether the matter ought to go forward to be
heard by way of substantive appeal.

12   2/7/93

MR AMBROSE:  I appreciate that, Your Honour. Of course, the

result will be that if the defendants are

successful on the appeal then so much time will

have gone by that they will have lost the

opportunity to properly investigate the matter and

they will still have been prejudiced. Now, that

might, perhaps, be somewhat alleviated if it was a

genuine concern that justice be done to both sides,

save if you look at the timetable, it is alleged

that at the earliest the HIV was contracted on

about 7 or 8 July 1989 and yet it was not until

three years exactly that the application was made,

three years being the limitation period. So, it

was not until 1991 that the application was made,

at first instance, and then the writ issued.

McHUGH J:  How did the plaintiffs put their case? Is it

alleged to be a needle stick injury or something of

that sort, or - - -

MR AMBROSE:  No, an unsafe system of work. It is alleged

that, amongst other things, they are exposed in the

course of their work at the pathology
studio/surgery to a lot of blood in various
circumstances, and they also make allegations that

the gloves that were provided were not sufficiently

safe, and matters such as that.

It is alleged that either the male plaintiff

or the female contracted HIV in those

circumstances, they do not know which, and then

passed it to the other at home in the personal

line.

TOOHEY J: Well, no doubt, if special leave were granted and

the respondents thought it appropriate, they could

make some approach to the Court in terms of an

expedited hearing of the appeal.

MR AMBROSE:  Thank you, Your Honours. I cannot assist you

any further.

TOOHEY J: Yes, thank you. Mr Harrison, this is probably

fairly apparent, the Court is minded to grant

special leave in each of these cases. There is a

question, of course, as to the present status of the order which has expired, as I understand it.

MR HARRISON: Your Honour, the Court of Appeal granted a stay

to the effect that it was stayed until today and if

Your Honours granted special leave it would

continue until the hearing of the appeal.

TOOHEY J:	Do we have that on record?
MR HARRISON:	That is not in the papers, that was obtained

after the evidence.

13   2/7/93

TOOHEY J: Could you just take us to that, please, it might

be important to know the precise terms of that

order.

MR HARRISON:	I am not sure that I have it.
TOOHEY J:	Do you have one, Mr Copley, or some copies?
MR COPLEY:	I have four copies.

TOOHEY J: Could you make them available, please. Yes, well

that is a self-operating order and does not seem to

require anything from us.

MR HARRISON:  No. I mean I agree with Your Honour, yes.

TOOHEY J:	Mr Copley, do you want to say anything about the order made by the Court of Appeal?
MR COPLEY:	We do not wish to be heard at this stage, if the

Court pleases.

TOOHEY J:	Mr Ambrose?
MR AMBROSE:	No, Your Honour.
TOOHEY J:	In the light of the order made by the Court of

Appeal, it is unnecessary for us to do any more

than grant special leave to appeal in each of these

applications.

AT 12.25 THE MATTER WAS ADJOURNED SINE DIE

14 2/7/93