XG v Medical Practitioners Board of Victoria

[2010] VSC 79

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 599 of 2010

XG	Plaintiff
v
MEDICAL PRACTITIONERS BOARD OF VICTORIA	First Defendant
- and -
DR L A SHAPERO, DR B M WHITE, MS S PANAGIOTIDIS and MR M GORTON (A panel of the Medical Practitioners Board of Victoria appointed pursuant to s 46 of the Medical Practice Act 1994)	Second Defendant

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JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 February, 11 March 2010
DATE OF JUDGMENT:	11 March 2010
CASE MAY BE CITED AS:	XG v Medical Practitioners Board of Victoria
MEDIUM NEUTRAL CITATION:	[2010] VSC 79

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PRACTICE AND PROCEDURE –Application for a non-publication order and a pseudonym order – Potential of stress caused by publicity to effect plaintiff’s health and the efficacy of treatment for cancer – Supreme Court Act 1986 (Vic) ss 18-19

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Noonan SC with Mr M. Richardson	John W Ball & Sons
For the Defendants	Minter Ellison

HER HONOUR:

1. The plaintiff has brought proceedings against the Medical Practitioners Board of Victoria in relation to the hearing of a complaint made against the plaintiff concerning his conduct towards a patient between 1973 and 1979.  The complainant made no formal notification of her allegations against the plaintiff until January 2007.  The plaintiff says that as a result of delays in the complaint being made and investigated, he is unable to have a fair hearing of the complaint.  Moreover, the Board has not, but should have, provided him with material about enquiries that it has made in relation to the allegations and the results of those enquiries.  He seeks, amongst other things, a stay of the Notice of Formal Hearing either permanently, or until 90 days after the provision of the materials to which he claims to be entitled.

1. The plaintiff seeks orders preventing publication of both his name and material that may identify him, colloquially known as a “pseudonym order”.  Specifically, he seeks to be at liberty to continue these proceedings so that he not be referred to by name, but by the reference “XG”.  Existing documents and documents created in the future would also identify the plaintiff by reference to “XG” and publication would be prohibited of anything relating to the proceedings, but to the extent only that publication might tend to identify the plaintiff, or the name and address of the plaintiff.  In addition, the original writ, statement of claim, summons, affidavits on which this application is based and any other documentation that identifies the plaintiff is to be placed on the Court file in a sealed envelope only to be opened on the order of a judge. 

1. Section 18 of the Supreme Court Act 1986 permits 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”. 

1. Section 19 provides that an order may be made by the Court under s 18 if it is of the opinion that it is necessary to do so in order not to –

(b)prejudice the administration of justice; or

(c)endanger the physical safety of any person.

1. The principles to be applied in an application for a pseudonym order such as this were considered by Forrest J in ABC v D1 and Ors; ex parte The Herald and Weekly Times Limited.[1]  His Honour set out the principles as follows:

   [1][2007] VSC 480.

·First, the principle 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 to 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 the 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 assault, 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.

1. The plaintiff relies both on prejudice to the administration of justice and on the potential of the proceedings if conducted in an unrestricted fashion to endanger his physical safety.

1. Two affidavits by Andrew Floyd Smith, an Australian legal practitioner who has the care and conduct of the proceedings on behalf of the plaintiff, have been filed in support of the pseudonym application. 

1. In his first affidavit sworn on 23 February 2010, Mr Smith deposes from information and belief to the following matters:

·     The plaintiff has been subjected to considerable stress, tension and concern from May 2007 to date in relation to the allegations made against him by the complainant and by the conduct of a proposed formal hearing by the Board and the publicity that such a hearing may attract.

·     The hearing of the proceeding which the plaintiff has himself instituted as a named party will subject him to further considerable stress, tension and concern having regard to the publicity which the hearing may attract. 

·     The plaintiff has been under the care of a treating urologist, Dr David Gunter, in relation to urological problems suffered by him over a period commencing in 2004.  Most recently, the plaintiff has had surgery for prostate cancer.

1. Dr Gunter has provided a brief report dated 19 February 2010 in relation to the plaintiff’s prostate condition and treatment, which is exhibited to Mr Smith’s first affidavit.  Dr Gunter’s report records that the plaintiff underwent surgery in December 2004 for the prostate condition.  In approximately December 2009, following blood tests, ultrasound scans and biopsies, the plaintiff was diagnosed with prostate cancer in both sides of the gland with evidence of a significantly higher grade malignancy in one area.  The plaintiff underwent brachytherapy to his prostate gland on 8 February 2010.

1. A fact sheet produced by the Genitourinary Oncology Special Advisory Group of the Urological Society of Australia and New Zealand and exhibited to the first affidavit of Mr Smith explains that brachytherapy for prostate cancer involves implanting “radio active seeds” in the prostate.  The seeds emit small amounts of radiation that affect tissue in a small area.  Brachytherapy is used as an alternative to radiotherapy in appropriate cases, as it provides less invasive and more targeted treatment.

1. The report from Dr Gunter concludes as follows:

There is evidence that tension and stress can be major factors in development of cancers and also in making the body’s response to anticancer treatment less effective.  [The plaintiff] has been under considerable stress since notified of allegations of professional misdemeanour.

1. In his second affidavit sworn on 5 March 2010, Mr Smith deposes that he has been informed by the plaintiff that in addition to being under the care of his treating urologist, Dr Gunter, in relation to urological problems suffered by him, he has also been under the care of Mr Geoffrey Wells, urologist.  A report from Mr Wells in relation to the plaintiff’s prostate condition and treatment is exhibited to Mr Smith’s second affidavit. 

1. The report by Mr Wells states that he initially saw the plaintiff as a patient on 22 December 2009 with a diagnosis of prostate cancer made by Dr  Gunter.  After considerable deliberation, it was decided to perform brachytherapy seed implantation on the plaintiff as a treatment for his prostate cancer.  Mr Wells reports that the plaintiff has made a very satisfactory recovery from the procedure and statistically should obtain an excellent treatment outcome.  However, he is subject to an extremely stressful medico-legal situation.  Mr Wells’ medical opinion is that if this stressful situation continued, it would be deleterious to the plaintiff’s cancer survival.  The radiation from the seeds is emitted over a two year period.  Increased stress and anxiety over this time, in Mr Wells’ opinion, could be associated with a decrease in cancer specific survival. 

1. It is therefore submitted that the additional stress and tension to which the plaintiff will be subjected as a named party in the event that this proceeding attracts publicity, may significantly impact on the plaintiff’s health in relation to his prostatic cancer condition and, in particular, may render the treatment that he has undergone  very recently less effective, and impact deleteriously on his cancer survival.  It is submitted that the plaintiff should not have to jeopardise his treatment and potentially put his life at risk in order to be able to pursue what is in essence a claim for abuse of process against the Medical Practitioners Board of Victoria.

1. I am persuaded that it is reasonably necessary to make the orders sought by the plaintiff by the content of the reports of Dr Gunter and Mr Wells concerning the effect that stress arising from the proceeding may have on his treatment for cancer and his survival prospects.  The plaintiff is suffering from a life-threatening illness.  He has very recently obtained treatment for this illness, the benefit of which may be compromised by the undeniable pressures involved in the litigation upon which he says he is required to embark.  I am persuaded that the plaintiff is in a critical phase of his treatment and that appropriate steps should be taken to reduce the stress on him of the proceedings.  In this regard, I take into account that although the proceedings brought by the plaintiff involve the determination of relatively dry administrative law questions, the allegations in issue before the Medical Practitioners Board of Victoria are of a kind that are damaging to the reputation of the plaintiff, and their exposure in open Court is likely to cause a great deal of stress and worry for the plaintiff.  It is possible, indeed likely, that those allegations will be canvassed in the course of the present proceedings and that they may attract publicity.

1. In the circumstances, the considerations personal to the plaintiff that I have set out outweigh the general principle of open justice.  I have carefully considered that fundamental principle and the countervailing considerations favouring the making of the pseudonym order.  I have come to the conclusion that it is in the interests of justice that the order be made. 

1. Accordingly, I propose to make the following orders:

1.The plaintiff be at liberty to continue these proceedings so that the plaintiff not be referred to therein by name, but by the reference “XG”.

2.The current Writ and Statement of Claim be varied to replace all references to the plaintiff by name with the reference “XG”.

3.All documents filed and served subsequently in the proceedings identify the plaintiff by the reference “XG”.

4.Publication be prohibited of 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 Writ, Statement of Claim or any other subsequent documents in the proceeding, or any information derived therefrom;

(e)the hearing of any interlocutory applications in the proceeding; or

(f)any other matters relating to these proceedings,

to the extent only that publication might tend to identify the plaintiff, or the name and address of the plaintiff.

5.The original Writ, Statement of Claim, Summons, Affidavits on which this application was based and any other documentation that identifies the plaintiff is to be placed on the Court file in a sealed envelope only to be opened on the order of a Judge.

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