Hamblin, Julie --- "Unreported, Supreme Court of NSW, Cole J, 4 February 1994" [1994] PrivLawPRpr 17; (1994) 1(2) Privacy Law & Policy Reporter 29

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Unreported, Supreme Court of NSW, Cole J, 4 February 1994

Court proceedings - disclosure of identity - HIV / AIDS - Supreme Court Rules1 970 (NSW)

The plaintiff alleged that she had become infected with HIV as a result of medical treatment administered by the defendant. She alleged that as a result of the defendant's failure to follow adequate infection control procedures, cross- infection had occurred from another of the defendant's patients who had HIV and who had been treated by the defendant earlier on the same day. Both the plaintiff and the defendant sought an interlocutory order that they be relieved from the provision of the Supreme Court Rules 1970 (NSW) which required disclosure of the name and address of each party.

Cole J conceded that the plaintiff would in all probability experience an exacerbation of her medical condition as a result of the stress and discrimination that would inevitably flow from the disclosure of her identity. However, he could not find any evidence that she would thereby be deterred from suing. On this basis, he concluded that the proper administration of justice did not require the non-publication order. He said that if he were deciding the matter without the benefit of precedent, he would be inclined to refuse the plaintiff's application. As it was, however, Cole J noted the large number of other cases in Australia in which a non-publication order had been made in favour of a plaintiff with HIV, and he concluded that it would not be appropriate for him to depart from this practice even though he was not technically bound by these other decisions. On this basis, he made the non- publication order in favour of the plaintiff.

So far as the defendant was concerned, the argument in support of the non- publication order hinged upon the irreparable damage which it was said would be done to his reputation and to his medical practice if his identity were made public. Cole J recognised this potential damage, but found that the circumstances were not materially different from those affecting all defendants, particularly in professional negligence matters. There was no precedent for a non-publication order in favour of the defendant in such matters, and he did not consider the circumstances of this case were sufficiently different to warrant a departure from this practice. He noted that ''mere embarrassment' is not sufficient to justify non-disclosure of the name of a party to proceedings.

Cole J therefore ordered that the plaintiff file an amended statement of claim naming the defendant at the expiration of a 14-day period. The 14- day period was permitted to enable the defendant to file a notice of appeal if he chose to do so

Julie Hamblin