A on behalf of B v State of NSW (Department of Education and Training)

[2013] FCA 331

FEDERAL COURT OF AUSTRALIA

A on behalf of B v State of NSW (Department of Education and Training) [2013] FCA 331

Citation:		A on behalf of B v State of NSW (Department of Education and Training) [2013] FCA 331
Parties:		A ON BEHALF OF B v STATE OF NSW (DEPARTMENT OF EDUCATION AND TRAINING)
File number:		NSD 947 of 2011
Judge:		GRIFFITHS J
Date of judgment:		9 April 2013
Catchwords:		PRACTICE AND PROCEDURE – suppression orders – suppression of names of litigation guardian and minor – s 37AG of the Federal Court of Australia Act 1976 (Cth) – principle of open justice – whether suppression necessary to prevent prejudice to the administration of justice
Legislation:		Federal Court of Australia Act 1976 (Cth) ss 37AE, 37AG
Cases cited:		Dye v Commonwealth SecuritiesLimited (No 2) [2010] FCAFC 118 Hogan v The Australian Crime Commission (2010) 240 CLR 651
Date of hearing:	9 April 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	11
Solicitor for the Applicant:	NSW Disability Discrimination Legal Centre
Solicitor for the Respondent:	Hicksons Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 947 of 2011

BETWEEN:	A ON BEHALF OF B Applicant
AND:	STATE OF NSW (DEPARTMENT OF EDUCATION AND TRAINING) Respondent

JUDGE:	GRIFFITHS J
DATE OF ORDER:	9 APRIL 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The names of the litigation guardian and the minor in these proceedings and any information tending to identify either of them, including the schools which the minor has attended, be suppressed until 30 June 2019 when the minor will attain 18 years of age.

2.The litigation guardian and the minor are to be referred to as A and B respectively for all the purposes of these proceedings, including in all documents filed or served in respect of the proceedings. 

3.For the purposes of s 37AG(2) of the Federal Court of Australia Act, the order is made on the basis that identification of the litigation guardian or the minor will prejudice the due administration of justice having regard to the minor’s age and the matters raised in the pleadings concerning the minor’s mental health, past history and experiences and personal conduct.

4.Access to the file in this consolidated proceeding by any person other than the parties, their legal representatives and Court staff shall only be with prior leave of the Court.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 947 of 2011

BETWEEN:	A ON BEHALF OF B Applicant
AND:	STATE OF NSW (DEPARTMENT OF EDUCATION AND TRAINING) Respondent

JUDGE:	GRIFFITHS J
DATE:	9 APRIL 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. An interlocutory application filed on 28 March 2013 came before me for directions today.  The interlocutory application seeks the following four orders:

   1.An order pursuant to r 9.70 of the Federal Court Rules 2011 approving the settlement reached by the parties in mediation conducted by the Court Registry on 27 February 2013.

   2.An order pursuant to r 1.34 of the Federal Court Rules 2011 that compliance with r 9.71(2)(c) of the Federal Court Rules 2011 be dispensed with.

   3.An order pursuant to s 37AF(1)(b)(iv) of the Federal Court of Australia Act 1976 (Cth) that all details of the settlement of the proceedings, including the Deed executed by the parties dated 27 February 2013 and the litigation guardian’s affidavit dated 27 March 2013 be suppressed and not be subject to publication.

   4.An order that proceedings NSD 947 of 2011 and NSD 689 of 2012 be dismissed.

2. The proceedings are brought by a litigation guardian on behalf of a minor.  An affidavit in support of the interlocutory application has been filed on behalf of the litigation guardian, who is the mother of the minor who is 11 years old.  This is the first time that this matter has come before the Court in open court.  It has previously been the subject of various directions hearings, but those directions hearings by consent have been dealt with on the papers.

3. The proposed settlement relates to consolidated proceedings brought by the litigation guardian on behalf of the minor seeking various relief based on claims of unlawful discrimination on the basis of disability and contravention of various disability standards under the Disability Discrimination Act 1992 (Cth).

4. The matter having come before me in open court for the first time today, I raised with the parties the question whether the matter was one where it was appropriate for the Court to consider making a suppression order relating to the identification of either or both the litigation guardian and the minor.  I raised this issue having briefly read both the amended statement of claim, which was filed last year, and also the detailed defence, which was filed on 30 October last year.  Those documents contain material which reveals some very personal aspects of the minor’s mental health, some horrific experiences as a young child and the minor’s own personal conduct.  I was troubled having regard to that material, and in particular noting the minor’s still relatively young age, with either the mother or the minor being identified. 

5. I am very conscious of the obligation imposed by s 37AE of the Federal Court of Australia Act1976 (Cth) that the Court take into account in deciding whether or not to make a suppression order or a non-publication order that a primary objective of the administration of justice is to safeguard the public interest in open justice. That principle is, of course, well established and is at the forefront of the Court’s consideration of taking any step which is inconsistent with it. Section 17 of the Federal Court of Australia Act 1976 (Cth) itself reflects the principle of open justice and the requirement that generally the Court’s jurisdiction be operated in open court and transparently. The principle of open justice was described by the Full Court in Dye v Commonwealth SecuritiesLimited (No 2) [2010] FCAFC 118 at [121] in the following terms:

   The principle of open justice operates on the premise that all the material placed in evidence before a court and on which, in open court, it is asked to act is open to public scrutiny.  That is because publicity itself has the purposes of both informing the public of how judicial power is exercised and ensuring that the courts are accountable for the use of that power entrusted to them.  Administrative power can be, and frequently is, exercised in secret.  Judicial power almost never is and, when it is, the departure from the ordinary mode of trial must be demonstrated to be necessary in the interests of justice.

6. Furthermore, in Hogan v The Australian Crime Commission (2010) 240 CLR 651, the High Court made relevant observations about the importance of open justice. Although those observations were directed to the now repealed s 50 of the Federal Court of Australia Act 1976 (Cth), I consider that, at a general level, they also provide important guidance to the exercise of the Court’s relevant powers under the current Act.

7. Under s 37AG(1) of the Federal Court of Australia Act, there are four grounds and only four grounds (it would appear), upon which the Court may make a suppression or non-publication order.  Those grounds include, in paragraph (a), that the order is necessary to prevent prejudice to the proper administration of justice. 

8. In my view, that ground applies in the circumstances here.  That is because, first, the pleadings to which I have made reference raise matters of particular sensitivity concerning the minor’s past life, the minor’s mental state and, equally troublingly, the minor’s own personal conduct over several years.  I see no basis in the interests of open justice why the minor’s identity needs to be disclosed, particularly in circumstances where, as matters stand at present, I am being asked to approve a settlement of the dispute between the parties.  Therefore, unless the settlement is not approved and the matter proceeds to a substantive hearing, there will not be any determination by the Court of the various matters that are raised in the pleadings.  Of course, some of those matters may need to be referred to in the course of the hearing of the existing interlocutory application and it is important in those circumstances that the identities be suppressed. 

9. I was informed by Mr French, who appears for the litigation guardian, that the proceedings have been the subject of some media coverage in the past. I am not aware of the nature or extent of that coverage. In any event, I do not regard that past history as providing any basis for me to take a different view to that which I do concerning the need to protect the identity of the 11 year old minor and the minor’s mother in the interests of the due administration of justice. In taking this course, I do not mean to suggest that the Court would be inclined to make such a suppression order in any case involving an application for the Court’s approval of a proposed settlement under r 9.70 of the Federal Court Rules 2011.  On the contrary, it is the particular facts and circumstances of this proceeding which weigh heavily with me in making the order which I propose to make.

10. Secondly, I have also been influenced by a concern that if a suppression order is not made in the circumstances of a case such as this, other potential litigants who are still minors and who tragically find themselves in similar unfortunate circumstances to the minor here may be reluctant to access the Court for fear that their identities will be revealed and associated with highly personal and sensitive matters.  That, plainly, is a matter which would prejudice the due administration of justice.

11. For all those reasons (and noting that the proposed orders were supported by the applicant and not opposed by the respondent), I make the following orders:

    (1)The names of the litigation guardian and the minor in these proceedings and any information tending to identify either of them, including the schools which the minor has attended, be suppressed until 30 June 2019 when the minor will attain 18 years of age.

    (2)The litigation guardian and the minor are to be referred to as A and B respectively for all the purposes of these proceedings, including in all documents filed or served in respect of the proceedings. 

    (3)For the purposes of s 37AG(2) of the Federal Court of Australia Act1976 (Cth), the order is made on the basis that identification of the litigation guardian or the minor will prejudice the due administration of justice having regard to the minor’s age and the matters raised in the pleadings concerning the minor’s mental health, past history and experiences and personal conduct.

    (4)Access to the file in this consolidated proceeding by any person other than the parties, their legal representatives and Court staff shall only be with prior leave of the Court.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.

Associate:
Dated:       12 April 2013