X v Sydney Children's Hospitals Speciality Network

[2011] NSWSC 1272

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

X v Sydney Children's Hospitals Specialty Network & Anor [2011] NSWSC 1272

Hearing dates:

25 October 2011

Decision date:

27 October 2011

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1)  Publication in Australia of the name of the Plaintiff and her next friend is prohibited, except that:

(a)  the Court and Court staff, the parties to the proceedings and their legal representatives and witnesses in the proceedings may identify the Plaintiff and her next friend for the purposes of or associated with the proceedings;

(b)  the parties to the proceedings may identify the Plaintiff and her next friend for the purposes of the administration of the public health system in the State of New South Wales; and

(c)  references to previous judgments of the Court are not in breach of this order.

(2)  Publication in Australia of other material that would be likely to identify the Plaintiff, such as the names of members of her family, is prohibited except that the Court and Court staff, the parties to the proceedings and their legal representatives and witnesses in the proceedings may identify them for the purposes of or associated with the proceedings.

(3)  For the purposes of orders (1) and (2), "parties" includes:

(a)  the Crown in right of the State of New South Wales, including but not limited to the New South Wales Minister for Health and the Ministry of Health; and

(b)  the parties' insurers and indemnity organisations.

(4)  The Plaintiff be otherwise identified by the pseudonym, "X".

(5)  The Plaintiff's next friend be otherwise identified by the pseudonym, "Y".

(6)  These orders have effect until seven days after the close of evidence in the present proceedings, subject to further order of the Court.

Catchwords:

PRACTICE AND PROCEDURE - COURTS AND JUDGES - Court Suppression and Non-publication Orders Act 2010 - pseudonym order in respect of the Plaintiff - Court satisfied that pseudonym order is necessary in the circumstances.

Legislation Cited:

- Civil Procedure Act 2005 (NSW) - s 72
- Court Suppression and Non-publication Orders Act 2010 (NSW) - s 4, s 7, s 8, s 11, s 12

Cases Cited:

- Ax v Stern [2008] VSC 400
- BT v Oei [1999] NSWSC 1082
- E v Australian Red Cross Society and Ors (1991) 27 FCR 310
- TK v Australian Red Cross Society (1989) 1 WAR 335
- Sydney South West Area Health Service v MD [2009] NSWCA 343

Category:

Interlocutory applications

Parties:

- Anonymised (Plaintiff)
- Sydney Children's Hospitals Specialty Network (Randwick and Westmead) (Incorporating The Royal Alexandra Hospital for Children) (First Defendant)
- Dr Brian Kearney

Representation:

Counsel:
- K.M. Connor SC, Ms K. Sant, Ms M. Avenell (Plaintiff)
- M.J. Windsor SC, S.A. Woods (First Defendant)
- J.K. Kirk SC, Ms V.A. Thomas (Second Defendant)
Solicitors:
Paul A. Curtis & Co (Plaintiff)
GILD Insurance Litigation (First Defendant)
Blake Dawson (Second Defendant)

File Number(s):

02/069388

Judgment

1. By oral application made on 25 October 2011, the Plaintiff seeks an order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) ( the Act ). In support of the application the Plaintiff filed written submissions together with an affidavit of Paul Anthony Curtis sworn 24 October 2011. Neither of the Defendants opposes the application.

1. Relevantly, s 7 of the Act provides as follows:

"A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of:

(a) information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court ..."

1. The order sought by the Plaintiff is that her name and other identifying information not be published, including the identity of members of her family in so far as that would identify her. The grounds for making an order under s 7 are set out in s 8 of the Act.

"(1) A court may make a suppression order or non-publication order on one or more of the following grounds:

(a) the order is necessary to prevent prejudice to the proper administration of justice,

(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,

(c) the order is necessary to protect the safety of any person,

(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency),

(e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made."

1. Ms Sant, Junior Counsel, who made the application on behalf of the Plaintiff, relied on subparagraphs (a), (c) and (e) of subsection (1) of s 8.

1. The Act commenced on 1 July 2011 and specifically provides, by s 4, that it does not limit or otherwise affect any inherent jurisdiction or any powers that a Court has apart from the Act to regulate its proceedings or to deal with a contempt of the Court. Accordingly, assistance can be obtained from authorities decided prior to the commencement of the Act.

1. Ms Sant has referred me to decisions made under the now repealed s 72 of the Civil Procedure Act 2005 (NSW) or like provisions in other jurisdictions. Ms Sant has referred me to pseudonym orders such as those sought by the Plaintiff in the instant case which have been made in cases of particular sensitivity. Examples include litigation brought by HIV infected people against the Red Cross because of the stigma attaching to HIV and AIDS: E v Australian Red Cross Society and Ors (1991) 27 FCR 310 at 313; TK v Australian Red Cross Society (1989) 1 WAR 335; and more recently in BT v Oei [1999] NSWSC 1082, another case in which the plaintiff had HIV. In TK , Malcolm CJ considered plaintiffs might be reasonably deterred from bringing proceedings because of the embarrassment that they might suffer if their condition were known generally.

1. The Plaintiff submits that non-publication orders have also been fairly regularly made in fertility cases to ensure that the child in question did not later happen upon circumstances discussed in the case. Examples including Sydney South West Area Health Service v MD [2009] NSWCA 343; Ax v Stern [2008] VSC 400 have been instanced. Although Ms Sant put the Plaintiff's application on the basis, as I have said above, of subparagraphs (a), (c) and (e) of s 8, the evidence adduced principally concerned subparagraph (c), namely the order is necessary to protect the safety of any person.

1. Nonetheless, I accept that where disclosure of the Plaintiff's identity carries with it a risk of harm, there is a potential prejudice to the administration of justice and to the public interest in people being able to exercise their legal rights. It would potentially prejudice the administration of justice were the parents of a child who had suffered harm, allegedly as a result of negligence, to be deterred from bringing proceedings for damages because of concern for the harm that disclosure of the child's identity could cause the child.

1. Ms Sant submitted that the Plaintiff has suffered a psychiatric illness and that she is a particularly vulnerable person who is liable to decompensate or become depressed or anxious if her identity is revealed. Ms Sant contends that her impairment is serious and severe and that her insight is sufficient for her to appreciate the extent of her impairment and disability.

1. The affidavit of Mr Curtis referred to above, which is filed in support of the application, deposes to his instructions from the Plaintiff's father and next friend to the following effect:

"[The Plaintiff] is a very private person who demands a low profile and becomes visibly upset and angry with those responsible if she is put in a position where she stands out from the crowd. [The Plaintiff] likes to think of herself as being normal and tries to be normal. If [The Plaintiff's] brain damage came to be in the public domain I believe it would be soul destroying for her. I believe it would destroy her psychologically. I am concerned that [the Plaintiff] will find reference to herself and this case on the internet and if that were to occur such a discovery would be devastating for her. Her self esteem is already incredibly low."

Annexed to Mr Curtis' affidavit are three reports of Dr Peter Krabman, the Plaintiff's treating psychiatrist, dated 9 June 2011, 18 September 2011 and 23 October 2011 respectively. Ms Sant has drawn my attention to the following passage in the report of 9 June 2011:

"It is my impression that she likely met criteria for an emotional disorder with mixed anxiety and depression for significant periods of her childhood, associated with the frustrations of her patchy developmental (and particularly communication) difficulties and the struggles of adapting to the school environment."

1. Dr Krabman, in the same report, sets out his current diagnosis for the Plaintiff, namely "Axis One Pervasive Development Disorder Not Otherwise Specified". Dr Krabman opines that the Plaintiff uses denial and narcissistic defences to avoid the pain of disability by pretending that it does not exist and putting on a tough front. He says that she wants to feel normal and pretend to be normal, and comments that her mother and teachers have learned that they must give guidance in small bursts repeatedly and expect some "attitude" in response. Ms Sant contends, and I accept her contention, that these matters are highly relevant to the risk of harm to the Plaintiff were her name to become publicly known to her school mates, or were she to be privy to details about her case, for example, through access through the internet or other media.

1. In his second report dated 18 September 2011, Dr Krabman opines that the diagnostic and prognostic opinions expressed in his earlier report of 9 June 2011 remain current with the addition of a likely progression to a current depressive disorder. Ms Sant emphases the prognosis of a likely progression to current depressive disorder in support of her application for a suppression and non-publication order, and her submission that the order is necessary to protect the Plaintiff's safety, which includes psychiatric safety.

1. Finally, Ms Sant drew my attention to the final report of Dr Krabman dated 23 October 2011 in which he specifically addresses the question of the need for preservation of the Plaintiff's privacy during the Court hearing. Dr Krabman said:

"It is my impression that if [the Plaintiff] were to be named in press reporting of her case it is likely that this would cause significant distress for [the Plaintiff] and personal, interpersonal and developmental disruption. Specifically, there would be a high likelihood that [the Plaintiff] herself and/or [the Plaintiff's] media savvy peers at school and/or their parents would discover [the Plaintiff's] link to the Court case, hear a reference to brain damage, in addition to other matters relating to the case, and discuss these matters with [the Plaintiff] in a way which she would find distressing and to which she is likely to react with either aggression/denial or need clinginess. In addition to [the Plaintiff's] over-reaction to peers or others who might enquire about what they had heard in the media, the content of media reports trigger insecurity or an instability in [the Plaintiff's] sense of self, and disrupt the sensitive process which [the Plaintiff's] parents and I are involved in of assisting [the Plaintiff] to come to terms with her history and her impairment. This insecurity will worsen depressive symptoms so I strongly support the de-identifying of media reports of the case if this is an option which is available."

1. I note that here all the Plaintiff seeks is a pseudonym order which, if granted, will not affect the public nature of the proceedings nor the ability of the press to report on the proceedings fully, with the only restriction being that the Plaintiff may not be identified.

1. I consider that pseudonym orders interfere with open justice only minimally and that such an order is warranted in the instant case. In my opinion, such an order is necessary to prevent prejudice to the proper administration of justice since, if the order were refused, the Plaintiff's next friend might feel under undue pressure to resolve the proceedings to avert the risk of harm to the Plaintiff that would be occasioned were the final to proceed to final judgment and the reasons for decision to be available on the internet (as they commonly are). I also accept, for the reasons given by Ms Sant, that the order is necessary to protect the Plaintiff's psychological safety. I consider that the public interest in permitting persons to exercise their right to have the question whether they are entitled to damages as a result of negligence determined outweighs the public interest in open justice in the circumstances of the instant case to which I have referred above.

1. Section 11 of the Act provides that the order under s 7 may be made to apply to the Commonwealth, and not merely to New South Wales. However s 11(3) provides that an order is not to be made to apply outside New South Wales unless the Court is satisfied that having the order apply outside New South Wales is necessary for achieving the purpose for which the order is made. I am satisfied of that matter. Having regard to the reach of the internet and its considerable accessibility to the Plaintiff and her peers, I propose to make the order apply throughout the Commonwealth.

1. Section 12 of the Act provides that a suppression or non-publication order operates for the period decided by the Court and specified in the order. Section 12(2) provides that the Court is to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made. Initially the Plaintiff contended that I should make the order "until further order"; however, the parties have since conferred and there is agreement that it would be appropriate for the order to be made until the conclusion of the evidence in the proceedings. It is said, and I accept, that when I have heard all the evidence in the case I will be in a better position to determine the appropriate length of the order. As will be seen from the orders set out below, I have added a period of seven days from the conclusion of the evidence to the duration of the order, in order that I may have sufficient time to consider the appropriate term of any further order.

Orders

1. Accordingly, I make the following orders, which, with the exception of the additional seven days to the term of the order, have been the subject of consideration by the parties:

(1) Publication in Australia of the name of the Plaintiff and her next friend is prohibited, except that:

(a) the Court and court staff, the parties to the proceedings and their legal representatives and witnesses in the proceedings may identify the Plaintiff and her next friend for the purposes of or associated with the proceedings;

(b) the parties to the proceedings may identify the Plaintiff and her next friend for the purposes of the administration of the public health system in the State of New South Wales; and

(c) references to previous judgments of the Court are not in breach of this order.

(2) Publication in Australia of other material that would be likely to identify the Plaintiff, such as the names of members of her family, is prohibited except that the Court and Court staff, the parties to the proceedings and their legal representatives and witnesses in the proceedings may identify them for the purposes of or associated with the proceedings.

(3) For the purposes of orders (1) and (2), "parties" includes:

(a) the Crown in right of the State of New South Wales, including but not limited to the New South Wales Minister for Health and the Ministry of Health; and

(b) the parties' insurers and indemnity organisations.

(4) The Plaintiff be otherwise identified by the pseudonym, "X".

(5) The Plaintiff's next friend be otherwise identified by the pseudonym, "Y".

(6) These orders have effect until seven days after the close of evidence in the present proceedings, subject to further order of the Court.

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Amendments

25 November 2011 - Typographical errors: replace 2001 with 2011.

Amended paragraphs: 10, 12 and 13

Decision last updated: 25 November 2011