Hamblin, Julie --- "Court disclosure of HIV status" [1994] PrivLawPRpr 13; (1994) 1(2) Privacy Law & Policy Reporter 22

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Court disclosure of HIV status

Julie Hamblin examines how the courts are weighing the privacy interests of litigants.

In a case to come before the High Court this year, the court is to consider the extent to which litigants may be entitled to privacy protection in relation to the reporting of court proceedings. The case, J v L & A Services Pty Ltd, is on appeal from the Court of Appeal of the Supreme Court of Queensland. In its judgment in February 1993, the Court of Appeal refused to uphold an order preventing the publication of the names of the two plaintiffs, both of whom are HIV positive, finding that the stress and other social disadvantages the plaintiffs might suffer if their HIV status became widely known were not sufficient to outweigh the public interest in the open administration of justice.

The plaintiffs, who are husband and wife, worked as scientists in a pathology practice, and were required in the course of their employment to handle large numbers of blood samples and other body fluids. They allege that one or both of them became infected with HIV through their work and have brought a claim for damages against their employer and an associated medical practice alleging negligence and breach of statutory duty on the basis of inadequate measures to protect the welfare of employees.

After commencing proceedings, the plaintiffs applied for an order that information about the proceedings not be published in a way that would enable them or their employer to be identified, except to the extent necessary to allow the matter to be prepared for hearing. They did not oppose the matter being heard in open court, but argued that the stigmatisation and discrimination directed at people known to have HIV justified orders by the court to limit the publication of their names as far as possible. The judge at first instance agreed to make the orders sought, but this decision was reversed by the Court of Appeal.

In their majority judgment, Fitzgerald P and Lee JA cited lengthy passages from a number of previous judgments on this question to illustrate the diversity of views expressed.[1] They noted, for example, that orders had commonly been made for the use of pseudonyms to prevent disclosure of the identity of the victim in blackmail cases, on the basis that the court proceedings would otherwise have no utility. Nonetheless, they emphasised the fundamental importance of an open system of justice stating that:

Although there is a public interest in avoiding or minimising disadvantages to private citizens from public activities, paramount public interests in the due administration of justice, freedom of speech, a free media and an open society require that court proceedings be open to the public and able to be reported and discussed publicly.

Their Honours went on to say that the public could be excluded from court proceedings and publicity prohibited when to do otherwise would prevent the enforcement of the law and deprive the court's decision of practical utility. However, the mere possibility that people could be deterred from bringing court proceedings for fear of loss of privacy was not sufficient to justify a non- publication order.

It was conceded that a further exception might exist where the restriction on publication was necessary in the interests of a party or witness in a particular proceeding, such as someone engaging in covert law enforcement operations, but even this exception was to be construed narrowly:

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'.

The refusal of the majority to recognise the harmful consequences of loss of personal privacy as a relevant factor to be considered in such matters demonstrates that there has been a frequent undervaluing of privacy interests by Australian courts. While the judgment cites recommendations by the Legal Working Party of the Inter-Governmental Committee on HIV/AIDS and the Commonwealth Privacy and HIV/AIDS Working Party in support of in-camera proceedings and non- publication orders to protect the privacy of people with HIV, the judges refused to adopt those recommendations in the absence of legislation giving effect to them. This disregard for non-binding guidelines and for the recommendations of governmental committees, quite apart from its privacy implications in this particular case, is disturbing in the context of many areas of evolving law and policy.

The decision of the Court of Appeal is a departure from the approach adopted consistently by other Australian courts in cases involving people with HIV. In New South Wales, for example, the Court of Appeal in the matter of PD v Australian Red Cross Society (1993) 30 NSWLR 376, had to decide whether the plaintiff, who had contracted HIV from a contaminated blood transfusion, should be entitled to discover the identity of the relevant blood donor in order to pursue a claim for damages against the Red Cross. Rather than allowing outright disclosure, the Court of Appeal devised a careful and supervised procedure for making the necessary information available to the plaintiff's solicitors through the intervention of a social worker, and thereby keeping to a minimum the number of people who would be told the blood donor's name.

Most recently, in the NSW litigation involving alleged HIV transmission from patient to patient in the course of medical treatment, non-publication orders were made in relation to both the plaintiff and the doctor involved.[2]

The approach adopted in PD shows that there is considerable scope for flexible and creative solutions to conflicts between individual privacy interests and the need for disclosure of information in the course of legal proceedings. It is frequently not necessary for one interest to be sacrificed for the other, if one stops to consider how else the particular concerns of each party can be addressed. However, if these more flexible solutions are to be exploited fully, there must first be a recognition by the courts of the importance of individual privacy and the need to give appropriate weight to privacy concerns when deciding how litigation should be conducted.

In deciding to allow the plaintiffs in J v L & A Services Pty Ltd special leave to appeal from the decision of the Queensland Court of Appeal, both Toohey J and McHugh J of the High Court commented that there was an important question of principle at stake in the case. McHugh J went on to say:

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.

The High Court's rethinking of the principles that should apply in such cases may well lead to a greater recognition of privacy interests

Julie Hamblin

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[1] See, for example, Scott v Scott [1913] AC 417; Attorney-General v Leveller Magazine Ltd (1979) AC 440; R v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [1984] 1 QB 227; R v Tait [1979] FCA 32; (1979) 46 FLR 386; Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47; John Fairfax & Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465; and John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of NSW (unreported, NSW Court of Appeal, 24 December 1991).

[2] DM v TD (unreported, Supreme Court of NSW, Cole J, 4 February 1994 - see case note in this issue)