Baldino v The Equal Opportunity Tribunal - [2015] SASC 85

SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules: Civil)
BALDINO v THE EQUAL OPPORTUNITY TRIBUNAL
[2015] SASC 85
Ruling of The Honourable Justice Peek
9 June 2015
EVIDENCE - PROHIBITION OF PUBLICATION OF EVIDENCE - STATUTORY POWERS
Application to revoke a suppression order
The applicant and respondent were parties in a trial in the Equal Opportunity Tribunal. On 30 July 2013 during cross-examination of the respondent, counsel objected to a line of questioning and requested the making a suppression order relating to relevant portions of the transcript. Counsel for the applicant did not pursue the line of questioning and agreed that a suppression order should be made. The Tribunal declined to make the order.
The respondent appealed to the Supreme Court. On 2 August 2013, the Full Court allowed the appeal and made an order suppressing from publication the evidence recorded in the relevant portions of the transcript. The applicant did not seek to be heard on that appeal. A representative of the media attended and indicated he did not object to the order.
The suppression order was reviewed by Peek J on 10 December 2014 pursuant to s 69AB Evidence Act 1929 without hearing submissions from the parties on the basis that it had been made in the above circumstances, a review of which indicated that the continuance of the order was required.
On 18 December 2014, the applicant filed an interlocutory application seeking revocation of the suppression order in its entirety. The applicant contended she had standing to bring the application pursuant to s 69A(5)(a)(iv) Evidence Act 1929.
Held, dismissing the application:
1. The application was made pursuant to s 69A(6) Evidence Act 1929. (at [11])
2. The wording of s 69A(5)(a)(iv) indicates that the matter of standing is to be addressed by reference to the time before the suppression order is made. The applicant would have been an interested person at that time, and she therefore satisfies the test for standing to apply for the revocation of the suppression order. (at [11])
3. The considerations which militate in favour of the making of the suppression order, and which led the Full Court to make it, have not relevantly changed and still require the suppression order to continue. (at [15])
4. A revocation of the suppression order, either wholly or in part, would now be unjust. It would cause significant prejudice to the proper administration of justice disproportionate to any impingement on the principle of open justice. (at [16])
Evidence Act 1929 (SA) s 69A(1)(a), s 69A(5)(a)(iv), s 69A(6), s 69AB, referred to.
R v Francis (2007) 251 LSJS 221; [2007] SASC 364; Australian Broadcasting Commission v Parish (1980) 43 FLR 129; (1980) 29 ALR 228, discussed.

BALDINO v THE EQUAL OPPORTUNITY TRIBUNAL
[2015] SASC 85
Civil

PEEK J. Application to revoke a suppression order
On 23 September 2010, Ms Ramstrom (the applicant herein) lodged a complaint with the Commissioner for Equal Opportunity against Mr Baldino (the respondent to this application) and on 15 February 2012, the complaint was referred to the Equal Opportunity Tribunal (the Tribunal).
The trial commenced on 4 March 2013 and was heard by her Honour Judge Cole and two members of the Tribunal over two sitting weeks (4-8 March 2013 and 29 July-2 August 2013). On 30 July 2013, during cross-examination of the respondent, senior counsel for the respondent objected to a line of questioning attempted to be put by the applicant’s counsel and requested the making of an order suppressing publication of the evidence recorded in the relevant portion of the transcript. There was then an adjournment. On resumption, counsel for the applicant indicated that he would not persist with the line of questioning objected to and that he agreed that a suppression order should be made. There was then a further adjournment. On resumption, the Tribunal declined to make the suppression order. There was then a further adjournment for counsel to take instructions as to whether the respondent wished to appeal against that refusal. On resumption, counsel indicated that it was wished to appeal to the Supreme Court and applied for an interim suppression order pursuant to s 69A(3) Evidence Act 1929 (the Act) pending this appeal. The Tribunal then made such an order.
The respondent filed the foreshadowed appeal and it was heard by the Full Court of the Supreme Court (Anderson J, myself and Nicholson J) on 2 August 2013. On that occasion the applicant did not seek to be heard personally or by counsel. The respondent was represented by senior and junior counsel. The Court noted that the transcript disclosed that counsel for the applicant before the Tribunal had decided not to persist with the line of questioning objected to and had offered no opposition to the application for a suppression order; indeed, that transcript disclosed that counsel for the applicant had positively supported the making of a suppression order in the circumstances.
A media representative, who had been heard in the proceedings before the Tribunal, attended at the hearing of the appeal and indicated that he did not object to the suppression order sought by the respondent.
The Court retired to consider the matter and on resumption delivered a ruling making a suppression order in the following terms:
1. Pursuant to section 69A(1)(a) of the Evidence Act 1929, the Court suppresses from publication the evidence that is recorded in the transcript of the hearing dated 30 July 2013 in the Equal Opportunity Tribunal matter number 313 of 2012 beginning at page 793, line 19 and ending at page 806, line 23, inclusive.
2. The suppression is made by consent of the appellant and media representatives, to prevent prejudice to the proper administration of justice.
3. Pursuant to 69B(3) of the Evidence Act 1929 the appeal is allowed.
4. No order as to costs
The substantive case in the Tribunal proceeded in the usual way. Judgment was reserved on 16 August 2013 and on 20 December 2013, the Tribunal delivered judgment dismissing the applicant’s claim.
On 10 December 2014 the suppression order came to be reviewed by a Judge of the Supreme Court pursuant to s 69AB of the Act. By that time, Anderson J had retired and I conducted the review. The applicant was not a party to the Supreme Court appeal proceedings in which the suppression order had been made. The suppression order was reviewed in chambers without hearing submissions from the parties on the basis that it had been made in the circumstances referred to above, a review of which indicated that the continuance of the order was required.
On 18 December 2014, the applicant filed an interlocutory application in Action No. SCCIV-13-1001 (the matter of the Full Court appeal) seeking the revocation of the suppression order in its entirety, together with an affidavit sworn on that same date. The application purported to be made pursuant to s 69A(5)(a)(iv) of the Act.
After the holding of a directions hearing, and after receiving detailed outlines of argument from both the applicant and counsel for the respondent, the application came on for hearing before me on 27 May 2015. At the commencement of the hearing, I made an order suppressing the submissions to be made during the course of the hearing, and that order continues. I later also made two further orders regarding the sealing of written material provided to this Court.
I consider that the application was in fact made under s 69A(6) rather than s 69A(5)(a)(iv) of the Act; both the applicant and counsel for the respondent agreed that this was so and the application proceeded on that basis. I also consider that the wording of s 69A(5)(a)(iv) indicates that the matter of standing is to be addressed by reference to the time before the suppression order is made and the applicant would have been an interested person at that time. That being so, I consider that she satisfies the test for standing to apply for the revocation of the suppression order.
On the hearing of the application I heard detailed submissions from the applicant in person and from counsel for the respondent. I received two affidavits sworn by the applicant. I take them into account (although some of the content has little weight). I also received two affidavits sworn by counsel for the respondent. I received outlines of arguments from both the applicant and the respondent and I take them into account, along with the oral submissions of the parties.
In R v Francis,[1] Gray J described s 69AB (the review of suppression orders procedure) as providing ‘that suppression orders become liable to review at the end of the particular proceedings, when a court will be in a better position to consider whether the order should be confirmed, varied or revoked.’[2] His Honour held that ‘the issue for determination is whether the reasons underlying the making of the suppression order still exist to justify the continuation of that order.’[3]
[1] (2007) 251 LSJS 221; [2007] SASC 364.
[2] R v Francis (2007) 251 LSJS 221; [2007] SASC 364, [15].
[3] R v Francis (2007) 251 LSJS 221; [2007] SASC 364, [33].
In Australian Broadcasting Commission v Parish, in the context of a provision of the Federal Court of Australia Act 1975 (Cth) governing the making of suppression orders to prevent prejudice to the administration of justice, Bowen CJ stated:[4]
What s 50 requires to be considered is prejudice to the administration of justice. The elements in the administration of justice which are involved on the side of a litigant seeking an order for confidentiality are the public interest in preserving the privacy of confidential arrangements so far as practicable and the public interest in the court’s doing justice between the parties, which will be hampered if the very proceedings in which the agreement is under challenge require the efficacy and value of the agreement to be seriously damaged, if not destroyed, before the result of the proceedings is determined. It appears to me the learned trial judge has not identified this public interest correctly.
On the other side, is the principle of open justice. In according weight to this principle, the learned trial judge appears to me to have accorded to it almost the weight it would have if there were to be a very substantial, if not a complete derogation from it. In such a case, it would, of course have immense weight.
Although the principle of open justice is of great importance in exercising the discretion under s 50, it is not necessarily the whole weight of that principle which must be placed in the scales. The derogation from the principle, which is involved in making any order under s 50, may be very great; or it may not be great; it may be very small. In playing that principle in the scales, the degree of derogation involved in the proposed order is an important matter to be considered.
[4] (1980) 43 FLR 129, 135-136; (1980) 29 ALR 228, 236-237.
The above discussion is of relevance to the present circumstances. In the outline of submissions previously provided on the hearing of the appeal by the Full Court (also provided on the hearing of the present application), the respondent listed a number of matters which tended to establish that there would be significant prejudice to the proper administration of justice if a suppression order were not granted. It is inappropriate to recite them here. Suffice it to say, those considerations which militate in favour of the making of the suppression order, and led the Full Court to make it, have not relevantly changed and still require the suppression order to continue.
I add that since that time, the case in the Tribunal has proceeded to a judgment in favour of the respondent and that judgment has not been set aside on appeal. A revocation of the suppression order, either wholly or in part, would now be unjust. It would inevitably attract the interests of the media to the matter and thereby cause significant prejudice to the proper administration of justice quite disproportionate to any impingement on the principle of open justice in all of the circumstances of the present case.
For all of the above reasons, I dismiss the application.