Judicial officers (ie magistrates, judges, and justices) have the power to grant what is known as a ‘pseudonym order’ to protect a person’s anonymity. Sometimes, a litigant wishes to remain anonymous in order to protect their identity. The same can be said about a witness who has been summonsed to appear in court.
Interestingly, a pseudonym order will not be granted merely to prevent a person’s health condition from becoming public. Nor will an order be made simply to avoid personal records from being openly shared. Something more is necessary.
The following are examples of categories of litigation where pseudonym orders have regularly been granted:
- Proceedings relating to a stigmatising illness or condition;
- Where it is necessary to protect a person’s psychological wellbeing;
- Matters considering issues of fertility;
- Actions concerning children; and
- Where the prospective litigant would otherwise have been sufficiently deterred from commencing their case.
The Decision of X v Sydney Children’s Hospital Specialty Network [2011] NSWSC 1272
The plaintiff was a child seeking an order that her name and other identifying information would not be published, including the identity of her family members. The plaintiff had suffered mild brain damage and she wished for this fact to remain unknown, so that she could continue to be perceived as ‘normal’.
The plaintiff’s treating psychiatrist gave evidence that the plaintiff likely met the criteria for emotional disorder, with mixed anxiety and depression for significant periods of her childhood. Another doctor had diagnosed the plaintiff as having Pervasive Development Disorder.
Pseudonym orders were granted by the court, in favour of both the plaintiff and her friend. The orders were ultimately considered necessary to protect the plaintiff’s psychological safety. In this respect, the Court noted: ‘… the Plaintiff has suffered a psychiatric illness and… she is a particularly vulnerable person who is liable to decompensate or become depressed or anxious if her identity is revealed’.
The Decision of Ax v Stern [2008] VSC 400
The applicants were parents who had conceived two children by way of In Vitro Fertilisation (‘IVF’). One of their children had suffered a disability, as a result of the IVF treatment.
The applicants argued that if the circumstances of their claim became known to both of their children, either one of them may suffer adverse and unfortunate reactions. This was based on the applicants’ views which prevailed at the time of conception/pregnancy, being that they would have contemplated termination of the foetus of the child now suffering a disability. The applicants gave evidence that they were only prepared to proceed with their claim, if their (and their childrens’) anonymity was maintained.
The Court held that it was in the interests of justice for pseudonym orders to be granted.
