Privacy for health matters and medical records in litigation

In Hunter v AFL & Anor [2015] VSC 112, the court was called upon to consider a claimant’s application for a pseudonym in respect of proposed litigation.

The making of a pseudonym order limits the extent of non-disclosure to the identity of a party to the proceeding or a single person within a proceeding, but otherwise does not affect the capacity of the media or anybody who sits within the body of the court to appreciate what is taking place in the proceeding before the court: [6].

The application was made on the basis that the application to be brought (an application for preliminary discovery) and the substantive proceedings that may follow, may reveal the health, condition and personal medical/health records of the applicant (a football player): [8].

At [9] the court observed:

At common law, the power to make pseudonym orders is well established. Essentially, orders are made to prevent prejudice to the administration of justice, and commonly, that is because it is desirable to protect the safety or the health and personal integrity of persons who are to be litigants or witnesses in proceedings. A common instance is where the disclosure of the identity of a plaintiff might be sufficient to defer or deflect the plaintiff from prosecuting his or her case,[5] unless public disclosure of their identity could be prevented. Other examples of cases where pseudonym orders are made include where a defendant would be reasonably deterred from defending proceedings, cases involving sexual offences, cases involving children, cases involving asylum seekers, cases involving the national interest, and cases involving questions of public interest privilege in the operation of the criminal justice system. The applicant’s solicitor was unable to refer to me to any authority in which a pseudonym order had been made for the reasons that the applicant advances.

The application was refused.

With thanks to Associate Professor Tina Cockburn for drawing this matter to my attention. It was reported in the weekly newsletter published by DLA Piper on 30 March 2015.

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