A by his next friend B v C
[2011] FCA 1356
•14 November 2011
FEDERAL COURT OF AUSTRALIA
A by his next friend B v C [2011] FCA 1356
Citation: A by his next friend B v C [2011] FCA 1356 Parties: A BY HIS NEXT FRIEND B v C File number: WAD 270 of 2011 Judge: SIOPIS J Date of judgment: 14 November 2011 Catchwords: PRACTICE AND PROCEDURE – application made by minor alleging disability discrimination by the school at which he is a pupil – orders made not to disclose information which tended to disclose the identity of applicant – whether order under s 50 of the Federal Court of Australia Act 1976 (Cth) should be made preventing inspection of the statement of claim. Legislation: Federal Court of Australia Act 1976 (Cth) s 50
Federal Court Rules r 2.32Cases cited: Hogan v Hinch (2011) 85 ALJR 398 Date of hearing: 14 November 2011 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 18 Counsel for the Applicant: Ms P Giles Solicitor for the Applicant: Fiocco’s Lawyers Counsel for the Respondent: Mr M Jensen Solicitor for the Respondent: Lavan Legal
Counsel for media interests: Mr AV McCarthy
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 270 of 2011
BETWEEN: A BY HIS NEXT FRIEND B
ApplicantAND: C
Respondent
JUDGE:
SIOPIS J
DATE OF ORDER:
14 NOVEMBER 2011
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The statement of claim is not to be inspected by any person not a party to the proceeding, without the Court’s prior leave.
2.Ms Amanda Banks’ request to inspect the statement of claim is refused.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 270 of 2011
BETWEEN: A BY HIS NEXT FRIEND B
ApplicantAND: C
Respondent
JUDGE:
SIOPIS J
DATE:
14 NOVEMBER 2011
PLACE:
PERTH
REASONS FOR JUDGMENT
This is an application made by the applicant in this proceeding, consequent upon a request being made by Ms Amanda Banks, a journalist from “The West Australian” newspaper, to inspect the statement of claim filed by the applicant in this proceeding. Rule 2.32 of the Federal Court Rules applies to Ms Banks’ application for inspection of the statement of claim. That rule permits a person to inspect the statement of claim, unless the Court has ordered that the document is confidential.
This application, which is for an order under s 50 of the Federal Court of Australia Act 1976 (Cth), to restrict inspection of the statement of claim, was made by an oral motion foreshadowed at the hearing on 21 October 2011, by Ms Giles, on behalf of the applicant, who brings this action by his next friend; and, as I recollect, Mr Curlewis, on behalf of the respondent.
The matter is controversial because at a hearing on 27 July 2011, I made orders under s 50 of the Act, to the effect that there should be no publication or disclosure of any information which tended to identify the applicant or the respondent in this case. The applicant, who, as I have said, brings this action by his next friend, is a minor and suffers from a disability. The respondent is the school at which the applicant is a pupil. The applicant alleges, in this proceeding, that the respondent discriminated against the applicant on the grounds of his disability.
There are three interests which are at stake in this application.
First, there is the interest in the administration of justice that a person with a legitimate claim is not prevented from vindicating that claim in this Court by reason of undue extraneous pressure which causes him or her not to bring the claim or to cease bringing the claim.
Secondly, there is the interest in open justice, namely, that courts in Australia carry out their work, so far as is possible, compatibly with the proper administration of justice, in public, so that courts are accountable to the public and the public retain confidence in the court system.
Thirdly, there is a public interest in the public being informed about any claims that there is discrimination in the school system against persons with a disability.
By being able to report freely on proceedings in the court system, the press plays an important role in advancing the second and third of these public interests.
As I have mentioned, there is, in this case, an order in place, which precludes the publication or communication of any information that tends to identify the applicant or the respondent. This order was made in furtherance of the first named of these interests. This order was made with the support of counsel for the newspaper, Mr McCarthy, and, in my respectful view, Mr McCarthy acted entirely appropriately in supporting that application.
The justification for intruding upon the two other interests, by, in the interest of the administration of justice, making such an order to protect the identity of a minor, is established. (See Hogan v Hinch (2011) 85 ALJR 398 at [27], where the High Court referred specifically to a number of statutes in States which prohibit the identification of minors in court proceedings.)
In support of his application for a confidentiality order, the applicant contends that, in the circumstances of this case, the public interest in reporting claims against schools which discriminate on the grounds of disability does not outweigh the interest in the administration of justice. This is because, so the applicant contends, the third public interest has already, to an extent, been satisfied because The West Australian published a report of the claim having been made, in reporting on the hearing in this Court on 27 July 2011. The applicant went on to contend that, bearing in mind the nature of the allegations made in the statement of claim, an inspection by Ms Banks of the statement of claim will not be able to facilitate the reporting of the claim in any more significant detail than is already in the public domain, without there being a risk of some information being published which has the tendency to identify the applicant or the respondent, and so contravene the orders that I made on 27 July 2011.
This contention is founded on the unusual nature and content of the allegations made in the statement of claim. The statement of claim contains a very detailed account of incidents involving the applicant, which he claims, occurred during school time, and at the school. Also, the statement of claim refers to a number of persons working at, or associated with, the school.
In my view, because of the very detailed nature of the allegations made in the statement of claim, any of the incidents, and persons, referred to in the statement of claim, if disclosed, has the propensity to identify the applicant, at least to the relatively small circle of persons who comprise the school community.
In my view, there is a risk that, even with the best will in the world on the part of a newspaper acting responsibly, any report of the content of the claim as pleaded in the statement of claim, which expands in any meaningful way upon the detail already disclosed in the previous report, would tend to identify the applicant or, at least, give rise to a claim, to that effect. This, in turn, may give rise to further litigation in the form of a contempt proceeding, in which the question litigated would be whether or not, the details mentioned in the newspaper report, did tend to identify the applicant.
It was because of the high level of detail in the materials before the Australian Human Rights Commission which is capable of identifying the applicant, that I made the orders in relation to those documents on 27 July 2011.
Accordingly, in my view, the potential harm to the proper administration of justice represented by the risk that the publication of a report of the statement of claim will, however unwittingly, tend to disclose the identity of the applicant, with an attendant risk of the proliferation of further litigation on that question, is not outweighed by the public interest in the publication of a further report of the applicant’s claim, which, at best, could contain only marginally more information about his claim, than is already in the public domain.
In my view, it is necessary to prevent harm to the interests of the administration of justice, that the confidentiality order sought by the applicant is made.
I will make orders, therefore, that the statement of claim not be inspected by any person who is not a party to the proceeding and, accordingly, refuse Ms Banks’ application to inspect that document.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 29 November 2011
0
2
2