Brooks v Easther (No 2)

[2017] TASSC 47

[2017] TASSC 47

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 Brooks v Easther (No 2) [2017] TASSC 47

PARTIES:  BROOKS, Peter Francis Thomas
  v
  EASTHER, Barry Maxwell

MASON, Norma Lynn
GROOM, The Hon Matthew
as Acting Attorney-General for the State of Tasmania

FILE NO:  1656/2017
DELIVERED ON:  21 August 2017
DELIVERED AT:  Hobart
HEARING DATE:  8 August 2017
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Evidence – Miscellaneous matters – Non-publication of evidence – Particular cases – Draft report of Board of Inquiry into local council – Application by general manager to enforce procedural fairness obligations relating to his reputation – Risk of injury to reputation if evidence published.

Annetts v McCann (1990) 170 CLR 596; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Hogan v Hinch [2011] HCA 4, 243 CLR 506; Paterson v MacPherson [2010] SASC 311, 272 LSJS 495, referred to.
Aust Dig Evidence [1256]

REPRESENTATION:

Counsel:
             Applicant:  S B McElwaine SC
             Third Respondent:  P Turner
Solicitors:
             Applicant:  Shaun McElwaine + Associates
             Third Respondent:  Solicitor-General

Judgment Number:  [2017] TASSC 47
Number of paragraphs:  29

Serial No 47/2017

File No 1656/2017

PETER FRANCIS THOMAS BROOKS v BARRY MAXWELL EASTHER,
NORMA LYN MASON and THE HON MATTHEW GROOM
as ACTING ATTORNEY-GENERAL FOR THE STATE OF TASMANIA

REASONS FOR JUDGMENT  BLOW CJ

21 August 2017

1. The applicant is the general manager of the Glenorchy City Council.  The first and second respondents are the members of a Board of Inquiry appointed by the Minister for Local Government under the Local Government Act 1993 ("the Act") to inquire into the governance arrangements and practices of the Glenorchy City Council.

2. On 15 June 2017 the applicant applied for a general order requiring the two members of the Board of Inquiry to show cause why relief should not be granted to restrain them from continuing to act in their capacity as a Board of Inquiry under s 215 of the Act. Both filed notices of submission, indicating that they would take no part in the proceedings. The Acting Attorney-General intervened, and has been added as the third respondent to the proceedings.

3. The application came before Holt AsJ on 5 and 13 July 2017.  Counsel for the applicant told him that the Board of Inquiry had provided the applicant with a draft of a report which it proposes to provide to the Minister. The applicant contends that the draft report contains proposed findings and recommendations which, if made, would be likely to prejudice his status as the general manager and/or his reputation. He contends that the Board members have failed to afford him natural justice in certain respects and that they are biased against him.  In the alternative, he contends that there is a reasonable apprehension that they have prejudged matters relevant to his status and reputation.

4. Counsel for the applicant explained to Holt AsJ that he wished to rely upon an affidavit to which a copy of the draft report was annexed, but first sought an order restraining the publication of the evidence.  Holt AsJ refused that application and published written reasons for his refusal: Brooks v Easther [2017] TASSC 44.

5. The applicant appealed from that order.  On 8 August 2017 I made orders allowing the appeal and setting aside the order of Holt AsJ.  I made a non-publication order in relation to the affidavit of the applicant and its annexures, and made a general order to show cause as sought.

6. These are my reasons for allowing the appeal, setting aside the order of Holt AsJ, and making a non-publication order.

7. It is clear that the applicant made his application to the Court for the purpose of protecting his reputation.  He does not want the members of the Board of Inquiry to submit a report to the Minister containing findings or recommendations that will damage his reputation.  His status as the general manager is not directly at risk, but substantial damage to his reputation could cause or contribute to his loss of that position, sooner or later.

8. The legislative scheme relating to boards of inquiry can be summarised as follows:

   · Section 215(1)(b) of the Act empowers the Minister to "establish a Board of Inquiry to investigate a council" if the Minister "is satisfied that a matter justifies its establishment".

   ·     Section 216(1) provides that the functions of a Board of Inquiry are "to conduct an inquiry into any matter referred to it by the Minister", and "to make recommendations to the Minister as a result of its inquiry".

   ·     Section 224(1) requires the Board of Inquiry to submit a report of its findings and recommendations to the Minister.

   ·     Section 225(1) requires the Minister, after considering the report, to advise the council and councillors in writing of the recommendations of the Board of Inquiry, and to invite further submissions from them.

   ·     It is implicit in s 225 that the Minister must consider any such submissions.

   ·     After considering any such submissions, there are a number of courses that the Minister may take.  He may direct the council to "rectify or mitigate the effects of its action", or to "discontinue its action", or to "give reasons for its action", or to "take such other steps as the Minister thinks necessary": s 225(2).  He may give a direction to the council to notify him, within a specified period, as to the steps it has taken or proposes to take, or the reasons why it has not taken or is not proposing to take any steps: s 225(3). He may recommend that the Governor dismiss the councillors: s 226.

9. There is nothing in the Act that requires the Minister to table a report of a Board of Inquiry in Parliament. However there is nothing in the Act that prevents him from making public some or all of the contents of such a report. Section 225(1) obliges him to advise the council and every councillor in writing of the recommendations of the Board of Inquiry. Whether he discloses any other part of the report is a matter for him.

10. The Act contemplates information from such a report becoming public.  Section 227(1)(a) provides that an action does not lie against a person who "publishes in good faith and for the information of the public … a copy or abstract of, or an extract from, a report made by a Board of Inquiry".

11. However there are confidentiality provisions in the Act relating to the information obtained by a Board of Inquiry, as follows:

    · Under s 228, the records and documents of a Board of Inquiry are exempt from the provisions of the Right to Information Act 2009.

    ·     Section 222(1) empowers a person authorised by a Board of Inquiry to require the production or access to documents and records, to inspect and take copies or extracts of such documents and records, and to require individuals to give assistance.  Section 223(1) prohibits such an authorised person from disclosing any information so acquired except to a member of the Board of Inquiry.  Contravention of that provision is punishable by a fine.

    ·     Similarly, the members of a Board of Inquiry are prohibited by s 222(3) from disclosing any information except in the exercise of their powers or the performance of their functions.  A contravention of that provision is also punishable by a fine.

12. The result of all these provisions is that at present the information gathered by the Board of Inquiry, its draft findings, and its draft recommendations, are all confidential.  However, once the Board's report has been provided to the Minister, there is a possibility that some or all of the Board's information, findings and recommendations will become public.  There is a certainty that at least its recommendations will be provided to every councillor.  Information or comments injurious to the applicant's reputation could be made public or at least published to the councillors.

13. It is clear from the High Court's decision in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 that a person's reputation is an interest to which the rules of procedural fairness apply. The appellants in that case were involved in manufacturing and supplying poker machines. A report that blackened their reputations was completed and tabled in the Queensland Parliament without them having been given any notice of its existence or its contents. It was held that the Criminal Justice Commission had failed to comply with the rules of procedural fairness.

14. In Annetts v McCann (1990) 170 CLR 596, which concerned a coroner's refusal to permit closing addresses at an inquest relating to the deaths of two teenage boys in desert country, Brennan J (as he then was) said at 608:

    "Personal reputation has now been established as an interest which should not be damaged by an official finding after a statutory inquiry unless the person whose reputation is likely to be affected has had a full and fair opportunity to show why the finding should not be made."

15. In the principal judgement in Ainsworth, Mason CJ, Dawson, Toohey and Gaudron JJ quoted that passage with approval at 578, and continued:

    "The same is true of business or commercial reputation, and it matters not that, instead of an express finding, there is, as here, an adverse recommendation based on the reports of other bodies or authorities. That being so, the appellants were entitled to procedural fairness." [Footnote omitted.]

16. At 579, their Honours went on to say the following about the appellants:

    "… their reputation was blackened in circumstances in which the Commission should have given, but did not give, them an opportunity to put their side of the matter."

17. In a separate judgment in that case, Brennan J said at 585:

    "It is especially appropriate that judicial review should be available when the function conferred by statute is to inquire into and report on a matter involving reputation, even though the report can have no effect on legal rights or liabilities, for no remedy may otherwise be available to vindicate the damaged reputation. The judgment of this Court in Annetts v McCann shows that where an inquisitorial power is being exercised without observing the rules of natural justice and reputation is at risk, the court may order that the rules of natural justice be observed and the court can thus, to an extent, protect the reputation at risk."

18. As a general rule, courts sit in public and there is no restriction on the publication of reports of their proceedings, including the names of the parties and witnesses, as well as the evidence.  However exceptions can be made.  The relevant principles were summarised by French CJ in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [20]-[22], as follows:

    "An essential characteristic of courts is that they sit in public. That principle is a means to an end, and not an end in itself. Its rationale is the benefit that flows from subjecting court proceedings to public and professional scrutiny. It is also critical to the maintenance of public confidence in the courts. Under the Constitution courts capable of exercising the judicial power of the Commonwealth must at all times be and appear to be independent and impartial tribunals. The open-court principle serves to maintain that standard. However, it is not absolute.

    It has long been accepted at common law that the application of the open justice principle may be limited in the exercise of a superior court's inherent jurisdiction or an inferior court's implied powers. This may be done where it is necessary to secure the proper administration of justice. In a proceeding involving a secret technical process, a public hearing of evidence of the secret process could 'cause an entire destruction of the whole matter in dispute'. Similar considerations inform restrictions on the disclosure in open court of evidence in an action for injunctive relief against an anticipated breach of confidence. In the prosecution of a blackmailer, the name of the blackmailer's victim, called as a prosecution witness, may be suppressed because of the 'keen public interest in getting blackmailers convicted and sentenced' and the difficulties that may be encountered in getting complainants to come forward 'unless they are given this kind of protection.' So too, in particular circumstances, may the name of a police informant or the identity of an undercover police officer The categories of case are not closed, although they will not lightly be extended. Where 'exceptional and compelling considerations going to national security' require that the confidentiality of certain materials be preserved, a departure from the ordinary open justice principle may be justified. The character of the proceedings and the nature of the function conferred upon the court may also qualify the application of the open-court principle. The jurisdiction of courts in relation to wards of the State and mentally ill people was historically an exception to the general rule that proceedings should be held in public because the jurisdiction exercised in such cases was 'parental and administrative, and the disposal of controverted questions ... an incident only in the jurisdiction.' Proceedings not 'in the ordinary course of litigation', such as applications for leave to appeal, can also be determined without a public hearing.

    It is a common law corollary of the open-court principle that, absent any restriction ordered by the court, anybody may publish a fair and accurate report of the proceedings, including the names of the parties and witnesses, and the evidence, testimonial, documentary or physical, that has been given in the proceedings." [Footnotes omitted.]

19. In this Court the power to make orders prohibiting or restricting the publication of evidence is a common law power. In some other jurisdictions, including South Australia, courts have similar statutory powers. In Paterson v MacPherson [2010] SASC 311, 272 LSJS 495, White J made a suppression order in a case with similarities to this one. That case was not cited to Holt AsJ.

20. The plaintiffs in that action were five members of a local council.  The first defendant had been commissioned by the Minister to investigate and report on aspects of the affairs of that council.  He circulated a draft report to the members of the council inviting their comment on his preliminary conclusions before he finalised the report and submitted it to the Minister. The plaintiffs sought judicial review, asserting that the investigator was invalidly appointed, that some of his terms of reference were invalid, and that he had denied them procedural fairness. It was necessary for the plaintiffs to satisfy the court that there was a reasonable basis upon which they might obtain an order for judicial review, and to obtain permission to serve the judicial review application.  A statute empowered a court to make a suppression order if it was satisfied that such an order should be made "to prevent prejudice to the proper administration of justice", but only "if satisfied that special circumstances exist giving rise to a sufficiently serious threat of prejudice to the proper administration of justice … to justify the making of the order in the particular case".

21. White J made the suppression order sought by the plaintiffs.  At [24] he said:

    "… a fundamental part of the relief sought by the plaintiffs is an order restraining permanently the publication of the draft Report by each of Mr MacPherson and the Minister. If the plaintiffs succeed in the action, they may obtain such an order. However, the effect of such an injunction would be rendered nugatory if there was in the meantime publication of the draft Report's contents. If there is publication of the draft Report before the Court can determine the merits of the plaintiffs' claims, the Court's ability to grant the relief to which the plaintiffs may ultimately be entitled would be lost, or at least compromised. This would be a significant compromise of the proper administration of justice."

22. His Honour went on to quote from the judgment of King CJ, with whom Olsson and Mullighan JJ agreed, in Bakewell v MacPherson (unreported, Supreme Court of South Australia, 25 September 1992), in which his Honour said:

    "… The purpose of these actions is to protect the business and personal reputations of the plaintiffs against what they claim to be unjust criticisms. If those criticisms became public knowledge before the plaintiffs had had proper opportunity to answer them, the purpose of the actions would be defeated. For that reason an order was made by the Court prohibiting publication of the evidentiary material on which the actions are based."

23. The same situation exists in this case. One of the applicant's principal objectives is the protection of his reputation.  If material injurious to his reputation in the draft report becomes public before the conclusion of the proceedings instituted by the applicant, the purpose of his application will be defeated. 

24. That consideration was not regarded as significant by the learned associate judge.  In his reasons at [17] he said:

    "Unlike, for example, proceedings to protect a trade secret, the subject matter of this litigation would not be destroyed, or even affected, by publicity.  Justice can be administered without there being any necessity to prohibit a fair report of the Court proceedings. The fact that publicity would, or might, damage the professional reputation of a litigant has never been a justification for a court hearing to be conducted in private or for the making of an order suppressing the reporting of evidence presented in the course of the hearing."

25. At [19] he said:

    "… The power to suppress can only arise if its exercise is necessary in the interests of the administration of justice.  Proceedings to put an end to the inquiry will not be undermined by the publication of the draft report as part of a fair report of proceedings being conducted in court."

26. At [22] he said:

    "Injury to reputation is not a consequence which can be said to interfere with the administration of justice so as to be capable of justifying the making of a suppression order."

27. As French CJ said in Hogan v Hinch (above) at [22], "The categories of case are not closed, although they will not lightly be extended". Since the reputation of an individual is an interest that attracts duties of procedural fairness that the courts will enforce, there will be cases that are instituted for the primary purpose of protecting reputations. If the publication of the evidence relevant to an applicant's reputation would destroy or substantially damage the reputation whose protection is sought, that factor alone can warrant the making of an order prohibiting the publication of the damaging evidence. The learned associate judge erred in law in failing to act upon that principle.

28. In my view the only appropriate course was to make a non-publication order in relation to the affidavit that counsel for the applicant proposed to rely upon prior to that affidavit being read. Otherwise the purpose of the proceedings was likely to be defeated.

29. It was for these reasons that I allowed the appeal, set aside the order of the learned associate judge, and made a non-publication order in the following terms:

    "That until further order the persons present in the Court during today's proceedings are not to publish to any other person any information as to the contents of the affidavit of the applicant sworn on 14 June 2017 or its annexures."