XY v WA Country Health Service [No 2]
[2016] WASC 245
•19 JULY 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: XY -v- WA COUNTRY HEALTH SERVICE [No 2] [2016] WASC 245
CORAM: PRITCHARD J
HEARD: 19 JULY 2016
DELIVERED : 19 JULY 2016
FILE NO/S: CIV 1916 of 2016
BETWEEN: XY
Plaintiff
AND
WA COUNTRY HEALTH SERVICE
Defendant
Catchwords:
Practice and procedure - Open justice principle - Exceptions - Prevention of prejudice to administration of justice - Protection of the safety of litigants
Non-publication order - Principles governing the making of a non-publication order
Order restricting access to information on the Court file - O 67 r 11 Rules of the Supreme Court 1971 (WA)
Pseudonym order - Principles governing the circumstances in which a party will be permitted to use a pseudonym
Legislation:
Rules of the Supreme Court 1971 (WA), O 67 r 11
Result:
Suppression orders made
Category: B
Representation:
Counsel:
Plaintiff: Mr M G Pendlebury
Defendant: Mr D Anderson
Solicitors:
Plaintiff: Panetta McGrath Lawyers
Defendant: State Solicitor's Office
Cases referred to in judgment:
A v Peters [2011] VSC 478
AAA v BBB (Unreported, VSC, BC9406139, 26 August 1994)
ABC v D1 [2007] VSC 480
Age Co Ltd v Magistrates' Court of Victoria [2004] VSC 10
BK v ADB [2003] VSC 129
Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171; (2008) 38 WAR 125
McJannett v Daley [No 2] [2012] WASC 386
R v Savvas, Stevens & Peisley (1989) 43 A Crim R 331
RN v Commonwealth of Australia [2014] VSC 289; (2014) 41 VR 699
Victorian Lawyers RPA Ltd v 'X' [2001] VSC 432
Witness v Marsden (2000) 49 NSWLR 429
XG v Medical Practitioners Board of Victoria [2010] VSC 79
XY v WA Country Health Service [2016] WASC 202
PRITCHARD J:
(This judgment was delivered extemporaneously on 19 July 2016 and has been edited from the transcript.)
Background
On 1 July 2016 I published my reasons for decision (Reasons) refusing an application by the plaintiff for an interlocutory injunction (the Injunction Application).[1] These reasons should be read in conjunction with the Reasons. The same abbreviations have been used.
[1] XY v WA Country Health Service [2016] WASC 202.
These proceedings concern an action commenced by the plaintiff to challenge the validity of decisions made by the defendant's officers to suspend her clinical privileges at a hospital where she works, injunctive relief to prohibit the defendant from continuing that suspension and damages for breach of the contract between the plaintiff and the defendant (that is, breach of the MSA).
The plaintiff's clinical privileges under the MSA were suspended on 22 January 2016 following an incident in the hospital's operating theatre involving the plaintiff (the Incident). Further details of the Incident are set out in my earlier decision[2] but, in short, the plaintiff had agreed to conduct a surgical termination of pregnancy (the Procedure) in respect of a patient (the Patient) whom she believed to be approximately eight weeks pregnant. Prior to commencing the Procedure, the plaintiff came to realise that the Patient was in a more advanced state of pregnancy than she had appreciated, and she did not perform the Procedure.
[2] XY v WA Country Health Service [2016] WASC 202 [19] - [26].
I heard the plaintiff's Injunction Application on 27 June 2016 and I delivered the Reasons to the parties[3] on 1 July 2016.[4] In the course of the hearing of the Injunction Application the plaintiff sought orders restraining the disclosure of certain parts of the evidence, the pleadings and the submissions; prohibiting the publication of information capable of identifying the Patient or the nature of the Procedure; and seeking the use of a pseudonym in place of the plaintiff's name. Counsel for the plaintiff presses for those orders today.
[3] Those reasons have been provided confidentially to the solicitors for the parties, but have not yet been entered onto the Court's database or, in other words, published to the world at large including by being made available on the internet. That is because, following the provision of those reasons to the parties, I made an order suppressing the reasons in their entirety and invited the parties to make submissions as to whether a pseudonym order should be made in respect of those reasons before they were published.
[4] XY v WA Country Health Service [2016] WASC 202.
Counsel for the defendant accepts that an order should be made prohibiting the publication of the Patient's name, but disputes that an order is necessary to anonymise or restrict publication of the plaintiff's name. He contends that the preferable course is for the Court to redact from the Reasons, or prohibit publication of, the nature of the Procedure.
The only other preliminary observation I should make at this stage is that neither party adduced any evidence in support of the application for the suppression and non‑publication orders sought. Nevertheless, for the reasons which follow, I have formed the view that an order for non‑publication and anonymisation of the plaintiff's name is warranted in these proceedings, as is an order to restrict the publication of, and access to, identifying information in relation to both the plaintiff and the Patient.
The interim non-publication order made on 27 June 2016
As I have already mentioned, in the course of the hearing of the Injunction Application, counsel for the plaintiff sought an order suppressing certain information in relation to the proceedings. He submitted that there was a need to keep the Patient's name confidential, and also submitted that the plaintiff's name should be kept confidential in so far as it identified her as being involved in the Procedure. For the purposes of dealing with the Injunction Application on an urgent basis, I accepted that it was appropriate to make an interim suppression order to restrict publication of the details of the proceedings. I did so on the express basis that the order was made on an interim basis, that I would provide reasons for my view that a suppression order was required, and that I would revisit the terms of that order in due course. These reasons constitute the provision of my reasons for that view as well as my reasons for making orders to suppress and restrict access to certain information in these proceedings in the future.
I should also mention that I prepared the Reasons, which I have already provided to the parties on a confidential basis, so as to ensure that their content would not permit identification of the persons involved, including the plaintiff, apart from reference to her in the title of the proceedings. I invited the parties to make submissions as to whether a pseudonym order should be made in respect of the plaintiff.
Principles in relation to the making of non-publication orders and orders restricting access to the Court file
The starting point in considering an application to make a non‑publication order is the fundamental importance of the principle of open justice. In TK v Australian Red Cross Society, Malcolm CJ observed that the Rules of the Court, namely O 67 r 11 of the Rules of theSupreme Court 1971 (WA), reflects:[5]
[T]he fundamental principle that the administration of justice is a public function. Justice must not only be done, but must manifestly be seen to be done.
[5] TK v Australian Red Cross Society (1989) 1 WAR 335, 336 (Malcolm CJ).
However, as his Honour acknowledged, the principle is subject to exceptions which rest on the inherent jurisdiction of the Court to regulate its own procedure.[6]
[6] TK v Australian Red Cross Society (1989) 1 WAR 335, 336 (Malcolm CJ).
The importance of the principle of open justice was also discussed by Le Miere J in McJannett v Daley [No 2], where his Honour said:[7]
An essential characteristic of courts is that they sit in public so that court proceedings are subject to public and professional scrutiny. It is also critical to the maintenance of public confidence in the courts: Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 [20] (French CJ). However, the open court principle is not absolute. It may be limited in the exercise of the court's inherent jurisdiction: Hogan v Hinch [21] (French CJ). This may be done where it is necessary to secure the proper administration of justice.
The principle of open justice is that judicial proceedings must be conducted in an open court to which the public and the press have access: Scott v Scott [1913] AC 417. The exceptions to this fundamental rule are few. Another aspect of the principle of open justice is that a court is obliged to publish reasons for its decision not merely to provide reasons to the parties. Sir Frank Kitto KBE, a former justice of the High Court, in "Why Write Judgments?" (1992) 66 Australian Law Journal 787 wrote:
It is not enough that the hearing of a case has been in public. The process of reasoning which has decided the case must itself be exposed to the light of day, so that all concerned may understand what principles and practices of law and logic are guiding the courts, and so that full publicity may be achieved which provides, on the one hand, a powerful protection against any tendency to judicial autocracy and against any erroneous suspicion of judicial wrongdoing and, on the other hand, an effective stimulant to judicial high performance (790).
[7] McJannett v Daley [No 2] [2012] WASC 386 [3] ‑ [4] (Le Miere J).
As Malcolm CJ observed in TK v Australian Red Cross Society, while there can be exceptions from the principle of open justice, the circumstances in which the Court will depart from that fundamental principle need to be very exceptional.[8] His Honour observed that:[9]
The onus on a party seeking public anonymity as a plaintiff or any other limitation on publicity with respect to proceedings must necessarily be heavy.
[8] TK v Australian Red Cross Society (1989) 1 WAR 335, 337 (Malcolm CJ).
[9] TK v Australian Red Cross Society (1989) 1 WAR 335, 337 (Malcolm CJ).
The decision whether to depart from the fundamental principle of open justice requires, first, an identification of any competing interests which may warrant a departure from that principle, and then a balancing exercise which weighs those competing interests with the principle of open justice.
Principles in relation to the use of pseudonyms for parties to proceedings
I turn to consider the particular principles which have been applied in respect of the use of pseudonyms for parties to proceedings.
At common law, it is well‑recognised that the Court has an inherent jurisdiction to order that a party's name not be published.[10] As I have already observed, the onus on a party seeking anonymity is necessarily very heavy.[11] One category of case in which pseudonym orders in respect of the name of a party may be made is to prevent prejudice to the administration of justice where it is desirable to protect the safety of persons who are litigants in the proceedings. For example, in RN v Commonwealth of Australia Dixon J observed: [12]
At common law, the power to make pseudonym orders is well established. One category of case in which suppression, closed court and pseudonym orders are generally made to prevent prejudice to the administration of justice are those where it is desirable to protect the safety of persons who are to be litigants or witnesses in those proceedings.[13] In BK v ADB,[14] Nettle J accepted that pseudonym orders may be made in ‑
… a case where disclosure of the identity of the plaintiffs might be sufficient to deflect the plaintiffs from prosecuting their case; which is to say they might reasonably be deterred from bringing proceedings unless public disclosure of their identities could be prevented.
[10] See TK v Australian Red Cross Society (1989) 1 WAR 335. See also Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171; (2008) 38 WAR 125.
[11] TK v Australian Red Cross Society (1989) 1 WAR 335, 337 (Malcolm CJ).
[12] See RN v Commonwealth of Australia [2014] VSC 289; (2014) 41 VR 699 [14] (Dixon J).
[13] XG v Medical Practitioners Board of Victoria [2010] VSC 79; Age Co Ltd v Magistrates' Court of Victoria [2004] VSC 10; Victorian Lawyers RPA Ltd v 'X' [2001] VSC 432; Witness v Marsden (2000) 49 NSWLR 429; R v Savvas, Stevens & Peisley (1989) 43 A Crim R 331.
[14] BK v ADB [2003] VSC 129 [10] (Nettle J), referred to in RN v Commonwealth of Australia [2014] VSC 289; (2014) 41 VR 699 [14] (Dixon J).
The principles which should be considered in relation to the making of pseudonym orders were considered by Forrest J in ABC v D1.[15] In that case, his Honour was considering the making of a pseudonym order pursuant to statutory provisions. But apart from references to the particular statutory provisions, the general nature of the principles which his Honour outlined are, in my view, applicable here. His Honour's summary of the principles, so far as they are relevant in this case, are as follows:[16]
First, that the principal 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 of 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.
...
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 assaults, 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.
...
[15] ABC v D1 [2007] VSC 480 [65] - [71] (Forrest J).
[16] ABC v D1 [2007] VSC 480 [65] - [71] (Forrest J).
Why suppression orders are warranted in this case
As I have already noted, the parties agree that the name of the Patient, and her privacy in respect of the Procedure, warrant protection in this case. In my view, given the very private nature of the Procedure, there could be no disagreement with that proposition.
The more contentious proposition is whether the identity of the plaintiff should be suppressed. Ordinarily, a party who chooses to participate in litigation must necessarily expect to have that litigation conducted in the open, with public access to the proceedings. Some additional factor needs to be present which warrants the suppression of a plaintiff's (or indeed any party's) name or to restrict the publication of the proceeding in so far as that would identify the plaintiff. In the present case, it is not so much the identity of the plaintiff, of itself, which is the issue, but the fact that the plaintiff performs the surgical termination of pregnancies, when those medical services are of a highly contentious nature in some quarters.
As I have already mentioned, there was no evidence put before the Court in support of the application for the suppression of the plaintiff's name, or even evidence as to why she sought that such an order be made. Nonetheless, I am prepared to accept that identification of the plaintiff as a person who performs medical services in the nature of the surgical termination of pregnancies may well place her in a position where she risks coming to the attention of those in our community who feel very strongly that the termination of pregnancies should not be permitted. In my view, the risk of receiving unwanted attention, or animosity, from such quarters is tantamount to being notorious, so much so that judicial notice may be taken of it. In this respect, I note that in ABC v D1, Forrest J observed that, where the use of a pseudonym is concerned:[17]
[U]sually the [proof] [requiring the use of the pseudonym] must be cogent and will not be satisfied by mere belief on the part of a party that the order was necessary. However, in certain cases a court can, in a practical sense, act on its own experience and draw appropriate inferences.
[17] ABC v D1 [2007] VSC 480 [71] (Forrest J).
The fact that the availability of surgical procedures for the termination of pregnancies is a highly contentious issue has been referred to in judgments in other jurisdictions. In AAA v BBB, Ashley J in the Supreme Court of Victoria observed:[18]
This is a case which, when I made the order and now, has the content to raise strong emotion in the community. ... It involves also medical termination of a pregnancy, again a matter of very considerable public debate. To say that there are many in the community who agitate for the right to abortion at will is not to deny the strongly held views of those who oppose abortion altogether. It is notorious that there is a degree of organisation in both camps, and that by word and deed they have made their views known.
[18] AAA v BBB (Unreported, VSC, BC9406139, 26 August 1994).
His Honour further observed that:[19]
[T]he emphasis upon the defendant's alleged conduct, particularly in relation to the termination of pregnancy, could readily be expected to incite strong and adverse views about her in sections of the community. It is notoriously the fact that such sections of the community have not been silent in the past in what they regard as provocative circumstances.
[19] AAA v BBB (Unreported, VSC, BC9406139, 26 August 1994) 10, 15 (Ashley J), referred to in A v Peters [2011] VSC 478 [10] (Almond J).
Indeed, in that case, his Honour referred to the fact that, according to the evidence of the plaintiff at trial, she had been contacted prior to the proceedings by telephone and by letter, and it had been conveyed to her the view that she was a murderer.
In A v Peters, Almond J noted that the observations made by Ashley J in AAA v BBB have been relied upon as warranting the making of an order protecting the identity of parties in similar circumstances.[20]
[20] A v Peters [2011] VSC 478 [10] (Almond J).
In my view, the fact that the plaintiff might be the recipient of unwanted and hostile contact from those who feel very strongly opposed to the termination of pregnancies, should her identity not be protected, has the potential to dissuade both the plaintiff, and others in any similar position, from pursuing their legal rights through litigation. That impact would adversely impact on the administration of justice. As Ashley J observed in AAA v BBB:[21]
[I]n the present case, it seems to me, it would be inimical to the administration of justice if either the plaintiff or the defendant were to be diverted or distracted from their ability to best advance their respective arguments by the actuality or the reasonable apprehension of contact by individuals or representatives of groups concerned to use the case to propagate some social or religious viewpoint.
[21] AAA v BBB (Unreported, VSC, BC9406139, 26 August 1994).
In my view, the administration of justice should not be so undermined in this case.
The real area of dispute in these proceedings has concerned the preferable course to ensure that the administration of justice is not undermined by the disclosure of information that links the plaintiff to the performance of the termination of pregnancies.
Suppression of the plaintiff's name or the nature of the Procedure?
The plaintiff's position is that the preferable course is to restrict publication of the plaintiff's name; to restrict access to information capable of identifying the plaintiff (such as through public inspection, or the provision of copies, of documents on the Court file pursuant to O 67 r 11 of the Rules of the Supreme Court 1971 (WA)); and to anonymise references to the plaintiff in the proceedings henceforth through the use of a pseudonym, including in the title of the proceedings and in the Reasons.
Counsel for the defendant submits that the preferable course is not to use a pseudonym for the plaintiff's name, but rather to redact all references to the Procedure from the Reasons and to prevent the publication of, or access to, information in relation to the Procedure.
At the outset, the submissions made by counsel for the defendant as to the appropriate course held some attraction. However, having given those submissions, and the orders which might be required, some considerable thought, I have formed the view that the approach advocated by the defendant is neither practical nor desirable in the present case. By way of example, such an approach would require a very considerable redaction of information from the Reasons. These reasons would also need to be redacted in a similar way. The extent of the redactions would, in my view, be so significant as to undermine the ability of a third party reading the Reasons to understand the basis for the Court's reasoning and the conclusions reached. Worse still, the extent of the redactions required may potentially mislead the reader in understanding how the Court came to reach its decision. Such an outcome would be inimical to the fundamental principles of transparent and open justice to which I have already referred.
I have also taken into account the difficulty of formulating an order to restrict the publication of particular information, namely the nature of the Procedure. The difficulty here, it seems to me, is that no party potentially subject to such an order for non‑publication would be able to be certain about precisely what it is that they are not at liberty to disclose. The potential for confusion about suppression orders of that kind is to be avoided wherever possible.
Why a pseudonym order is warranted in this case
In the present case, the question of suppression of either the name of the plaintiff or the details of the Procedure represents a somewhat difficult balance. However, in the end, I am satisfied that the use of a pseudonym for the name of the plaintiff and orders restricting publication of, or access to, information capable of identifying plaintiff, is appropriate.
In summary, I have reached that conclusion for the following reasons.
First, I accept that there is a risk that the plaintiff may be the recipient of unwanted and potentially hostile attention from those quarters of our community who are opposed to the provision of medical services to terminate pregnancies and that such attention might dissuade her from continuing with this litigation. If that were to occur, that would undermine the administration of justice.
Secondly, the anonymisation of the plaintiff's name and an order for the non‑publication of her identity would permit the publication of information in relation to the proceedings generally, including the Reasons, to the greatest extent, thereby permitting the maximum degree of transparency in the Court's processes and its reasoning. Conversely, without the use of a pseudonym, a very significant portion of the Reasons and of the evidence referred to could not be published in order to avoid identifying the nature of the Procedure. That, in itself, would potentially undermine the ability of those reading the Reasons to understand the Court's reasoning.
One final observation that I should mention in respect of this balancing process is that these proceedings were not commenced by the plaintiff using a pseudonym.[22] (That is, the plaintiff did not make an application for the use of a pseudonym prior to commencing the proceedings.) The urgency with which the interlocutory relief was sought perhaps provides some explanation for that oversight. In my view, that oversight does not preclude the use of a pseudonym in the future, nor does it militate against an order suppressing the plaintiff's identity in the proceedings to date.
[22] Cf TK v Australian Red Cross Society (1989) 1 WAR 335.
In short, in my view, the use of a pseudonym together with an order for the non‑publication of the plaintiff's name represent the minimum intrusion on the principle of open justice in this case. Orders of that kind are preferable to an order which endeavours to ensure the non‑publication of information in relation to the nature of the Procedure.
The orders that should be made
The orders that I propose to make are as follows:
(1)The non-publication order made on 27 June 2016 is vacated.
(2)The plaintiff be at liberty to continue these proceedings so that the plaintiff not be referred to therein by name, but by the pseudonym 'XY'.
(3)All documents filed in these proceedings shall henceforth refer to the plaintiff by the pseudonym 'XY' and the name of the patient who was the subject of the incident involving the plaintiff on 22 January 2016 (the Patient) should be anonymised.
(4)Publication be prohibited of any report of:
(a)the commencement of the proceedings by the plaintiff;
(b)the hearing of the interlocutory injunction application;
(c)the content of the affidavits in support of and the orders made in this application;
(d)the Writ, Statement of Claim, Defence or any other subsequent documents in the proceeding or any information derived there from; and
(e)the hearing of any interlocutory applications in the proceedings;
to the extent only that publication might tend to identify the Patient, the plaintiff, or the name and address of the plaintiff;
(5)The reasons for decision dated 1 July 2016 ([2016] WASC 202) be published using the pseudonym 'XY' to refer to the plaintiff.
(6)Notwithstanding anything in O 67 r 11 of the Rules of the Supreme Court 1971 (WA), no person other than the parties to these proceedings, or their solicitors, are to be permitted access to any document on the Court file, save by order of a judge.
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