C. C. v Djerrkura
[2002] FMCA 372
•11 October 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| C. C. v DJERRKURA & ORS | [2002] FMCA 372 |
| PRACTICE AND PROCEDURE – Suppression from publication of the name and identifying features of the applicant – matters to be considered. Human Rights and Equal Opportunity Commission Act, s.46PH(1) TK v The Australian Red Cross Society (1989) 1 WAR 335 |
| Applicant: | C.C. |
| First Respondent: Second Respondent: Intervenor: | GATJIL DJERRKURA ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION NATIONWIDE NEWS PTY LTD |
| File No: | DZ 09 of 2002 |
| Delivered on: | 11 October 2002 |
| Delivered at: | Darwin |
| Hearing date: | 11 October 2002 |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Reeves QC |
| Solicitors for the Applicant: | De Silva Hebron |
| Counsel for the First Named Respondent: | Mr James |
| Solicitors for the First Named Respondent: | Geoff James |
| Counsel for the Second Named Respondent: | Mr Grant |
| Solicitors for the Second Named Respondent: | Australian Government Solicitor |
| Counsel for the Intervenor: | Mr Southward QC |
| Solicitors for the Intervenor: | Ward Keller |
ORDERS
That orders numbered (1) and (2) made on 23 September 2002 are set aside.
UNTIL FURTHER ORDER
That pursuant to section 61(1)(b) of the Federal Magistrates Act, the following details of the applicant be forbidden to be published in any form of media publication in connection with these proceedings or in relation to the circumstances giving rise to these proceedings.
·her name
·her initials
·her age or personal details
·her private address
·her work address
·With the exception of the position she holds with the second respondent, any other positions she holds with any professional or community organisation, and
·The name of any members of her family or extended family
·With the exception that she is a member of a large indigenous Darwin family.
Any party has liberty to apply upon reasonable written notice to the solicitors for the other parties.
That the applicant be provided with a full copy of all pleadings and affidavits filed in these proceedings to date within 5 days of today’s date.
Costs of today’s application and incidentals to date are reserved to the adjourned date.
That this matter is adjourned to 4 December 2002 at 9.30am.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DZ 09 of 2002
| C. C. |
Applicant
And
| GATJIL DJERRKURA |
First Named Respondent
| ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION |
Second Named Respondent
| NATIONWIDE NEWS PTY LTD |
Intervenor
REASONS FOR JUDGMENT
Introduction
These are the ex tempore reasons for judgment in the matter of C.C. and Gatjil Djerrkura and the Aboriginal and Torres Strait Islander Commission. On 23 August 2002 the applicant filed an application in this court pursuant to the Human Rights and Equal Opportunity Commission Act, alleging that she had been the subject of sexual harassment, in contravention of the provisions of the Sex Discrimination Act.
The first-named respondent to the application was Mr Gatjil Djerrkura who, at the time of the alleged complaint, was the Chair of the Aboriginal and Torres Strait Islander Commission. The second-named respondent to the application is the Aboriginal and Torres Strait Islander Commission itself.
Prior to the lodging of this application, the applicant had lodged a complaint with the Human Rights and Equal Opportunities Commission. That complaint was terminated by the Commission on 29 June 2002, pursuant to the provisions of section 46PH(1) of the Human Rights and Equal Opportunity Commission Act. The complaint was terminated on the basis that the delegate of the President of the Commission believed there were no reasonable prospects of the matter being settled by conciliation.
The behaviour of which the applicant complains allegedly occurred in September of 2000. As I say, her application was filed on 23 August 2002 and, as is the normal course of events, it was given a date of
25 September 2002 before the court to enable both the first and second-named respondents to be served with it.
However, prior to 25 September, on 23 September in fact, in the late afternoon, the applicant sought orders by means of an oral application to the Court pursuant to section 61 of the Federal Magistrates Act. The orders that she sought at that time were to prevent her name being published in the media or herself being identified either directly or indirectly in the media.
At that time, on 23 September, I was told that the Australian newspaper had plans to publish an article in the Australian the next day about the matter. The applicant swore an affidavit in support of her application. In particular, she deposed that she had been diagnosed as suffering from a psychological condition, which was being treated with anti-depressant medicine and psychiatric counselling. I was also told that the prospect of her being identified in a national newspaper and her identity being made known throughout the country, and in particular in Darwin where she lives, was a cause of great trepidation to her and might have the consequence of causing her to abandon her application in this court and might also have unfortunate consequences for her medical condition.
At that time, on 23 September, ATSIC had been served with the application but Mr Djerrkura had not. On that basis, prior to the interest of the Australian newspaper in the matter being known to either the applicant or ATSIC, it had been agreed between them that the proceedings should be adjourned to 13 October to allow Mr Djerrkura to be served.
When the application came on before me on 23 September, I was concerned that Mr Djerrkura had not been served with the application and was accordingly unaware of the serious complaints that had been made against him by the applicant.
Section 61 of the Federal Magistrates Act provides as follows:
The Federal Magistrates Court may, at any time during or after the hearing of a proceedings in the Federal Magistrates Court, make such order forbidding or restricting:
(a)the publication of particular evidence; or
(b)the publication of the name of a party or witness; or
(c)the publication of information that is likely to enable the identification of a party or witness; or
(d)access to documents obtained through discovery; or
(e)access to documents produced under a subpoena;
as appears to the Federal Magistrates Court to be necessary in order to prevent prejudice to:
(f)the administration of justice; or
(g)the security of the Commonwealth.
Clearly, this is not a case that deals with the security of the Commonwealth.
On the basis of the fairly limited evidence before the Court on
23 September 2002, I formed the view, that due to the possibility of the applicant abandoning her right to pursue her complaint, arising from her apprehension about being publicly identified, there was a real possibility of prejudice being caused to the administration of justice, in the sense that a person who was entitled to pursue an application for relief because of an unlawful action might, for reasons relating to her privacy and fears of embarrassment, decide not to pursue it.
I was also concerned about the fact that the first-named respondent, Mr Djerrkura, had not had an opportunity to be heard in respect of what was clearly a complicated and potentially difficult matter, from his point of view. Therefore, although he was not present on 23 September, I made orders suppressing both the applicant’s name and Mr Djerrkura’s name.
I said as follows, in particular:
“This matter has been listed urgently because of concerns about the article that may be published in the newspaper tomorrow. It is a matter in which the applicant seeks to pursue a complaint that she lodged with the Human Rights and Equal Opportunity Commission, a complaint that has been terminated. I am not as yet aware why the complaint was terminated, but it has been and, as is her entitlement, she has sought to have the matter brought to this court for hearing.
It is a complaint that is brought under the Sex Discrimination Act. At this stage I have evidence on oath before me from the applicant which indicates that she is suffering psychological consequences as a result of behaviour allegedly committed by the first-named respondent and I am told, and I accept, that there is a possibility that if there is publication of any information about her action and herself in the media, this might compound her mental distress.
The application, as I say, is brought pursuant to section 61 of the Federal Magistrates Act. The court, pursuant to that Act, has a discretion as to whether or not to make an order forbidding the publication of any evidence, to prevent the publication of the name of a party or of a witness, or the publication of information that is likely to lead to the identification of any party to the proceedings, if it appears to be necessary to prevent prejudice to the administration of justice to do so.
The applicant argues that the publication of her name may cause discomfort and embarrassment to her and may in fact be a reason why she will not pursue any benefit to which she’s entitled under the Act.
I have not heard any detailed argument either from her or from the other parties who are concerned in the matter, or, indeed, from other persons who may be interested in the matter. I am hearing this matter on an urgent basis because of the potential prejudice to the applicant by reason of the article that may or may not be published tomorrow.
However, if the potential for her name to be published causes her to discontinue her action, I am satisfied at this stage that this is reason to make the orders sought under section 61 on an interim basis.
I think, although Mr Reeves who is counsel for the applicant has no brief to safeguard the interests of the first-named respondent, that it is of some importance that he has not as yet been served. He apparently knows nothing about the proceedings and, as a result, is not in any position to put anything before the court about them. This aspect of the case troubles me.
Pursuant to section 61, I have the power to suppress any name that may identify any party and it seems to me that it is likely to be in the best interests of the administration of justice if the first-named respondent’s name is also suppressed at this stage.
There is the question of how long any suppression order should last. As I say, this is an ex parte application and there may be others who are interested in the proceedings. On balance, I think it is preferable the order should be made until 9 October 2002, which is a little over a fortnight from today. This will give ample time to the first-named respondent to be served.”
As matters transpired, others were indeed interested in these proceedings and, on 26 September 2002, solicitors for Nationwide News Pty Ltd, the company which is the publisher of the Australian, filed a Notice of Motion seeking to set aside the orders that were made on 23 September 2002. The Notice of Motion was listed for 9 October 2002, last Wednesday. At that stage, I hoped that all the parties would have been served with the material, so that an argument could be heard in respect of the matter raised pursuant to section 61 and the positions of each of the parties canvassed in regards to the publication of the applicant’s name generally.
Unfortunately, on 9 October Mr Djerrkura had still not been personally served with the applicant’s application, nor the Notice of Motion filed by Nationwide News. However, earlier, on 24 September 2002, solicitors who purported to act on behalf of Mr Djerrkura had written to the court inquiring after the matter and the court had in fact written to those solicitors suggesting they contact the solicitors for the applicant.
It was against that background on 9 October 2002 that I made orders for substituted service on Mr Djerrkura pursuant to Rule 16 (14) of the Federal Magistrates Court Rules. I also gave leave to Nationwide News to be included as a party to the proceedings, it clearly being the position that they had an interest in the proceedings.
In support of its interest in the matter, Nationwide relies on an affidavit of Paul Toohey, who is a journalist and in fact the Darwin Bureau Chief of the Australian newspaper. He deposes as to his own personal interest in the proceedings as a journalist, and the interest that he believes the general public are likely to have in it, because of the forthcoming ATSIC elections. It being the case that several prominent Aboriginal people, who are running for office in the election, have been the subject of complaints of misconduct of one sort or another and these complaints have resulted in legal proceedings. Because of the allegations made against Mr Djerrkura, it is Mr Toohey’s position that the general public are likely to have an interest in these proceedings in the general context of alleged misconduct against elected officials of ATSIC.
As is well known, Mr Djerrkura is a prominent person. He is well known in Aboriginal Affairs and is a former chair of ATSIC. In brief, Mr Toohey deposes that the public have a right to know about the allegations that are made against Mr Djerrkura, especially in light of the fact that Mr Djerrkura is seeking an elected office to the Board of ATSIC.
Today Mr Djerrkura appears through his counsel, Mr James, and I have had the benefit of hearing argument from him and from Mr Reeves, who appears for the applicant; from Mr Grant who appears for the Aboriginal and Torres Strait Islander Commission; and from Mr Southwood who appears for Nationwide News.
I appreciate that the application has been brought on at short notice and that Mr Djerrkura in particular has not had as much time as he would have liked to prepare his case. It is Mr Djerrkura’s position that there should be no suppression order of any aspect of these proceedings. That is, his name should not be suppressed and anything regarding the applicant’s identity similarly should not be suppressed.
Mr James argues that the common law authorities in regards to this matter are clear and that the Court should administer justice publicly and openly, and above all, it is a fundamental principle that the general public have a right to scrutinise what this and all courts do, and that this principle should not be easily yielded to because of any sensitivity, vulnerability or embarrassment that any particular party to the proceedings may feel.
In essence, it is his position that the fact that the applicant may be embarrassed about these proceedings; that she may be subject to media scrutiny, that her name may appear in the newspaper or on television and her identity be made known; is not of itself sufficient reason to prevent the well-known and long-standing principle that justice should not only be done but be seen to be done, being applied to this case.
It is also his client’s position that any suppression of evidence in this case will deny his client the opportunity to fully defend the allegation. Further, it may prejudice his client’s case and his ability to defend it in that if the case is clouded in any form of secrecy, people who have evidence or may be of assistance to his case, will not be able to come forward as they will not know about these proceedings.
He also argues that his client will be denied the opportunity to publicly confront his accuser, which he says is a fundamental right of a person accused of serious misconduct. He also argues, on behalf of his client, that in any event, the applicant has waived her entitlement to be protected in the sense that she has, it is alleged, spoken to Mr Toohey, the journalist concerned, and also, of more general importance, has circulated an e-mail throughout the section of ATSIC in which she works, which identifies her and identifies the first-named respondent, and, in those circumstances, justice demands that her identity should not be suppressed from public knowledge, as she seeks.
He is also critical of the medical basis on which the applicant seeks the orders that she does. He argues that there is no proper medical basis on which I can reach the conclusion that the fact of her name being published or disseminated will cause any greater consequences for her health than for any other person in a position similar to hers..
He also argues that the case against his client is weak and the mere consequences of suppressing one party’s name to it, may cause the matter to be given greater significance than it would otherwise have in the media, and may lead to it being misreported and being given greater significance than it might otherwise have. Essentially, he argues that mischievous people will conclude that because the applicant’s name is suppressed, there must be a serious basis for the case against Mr Djerrkura and this is not the case.
Mr Grant, who appears for ATSIC in this matter, has briefly put his client’s position. His client’s position is that it is committed, as one might expect, to open government and wishes these proceedings to be conducted publicly. It does not seek any specific suppression order.
He also refers to the e-mail, which the applicant disseminated through the section of ATSIC in which she works, which is the Northern Territory Policy Centre for ATSIC. In effect what Mr Grant says is that, because of the e-mail, the cat is out of the bag, as far as this matter is concerned and the identity of the applicant is known amongst that section of the community about whom the applicant is most concerned, that is the Aboriginal community within the Northern Territory.
Mr Southwood appears for Nationwide. His position is clear. It is set out in the affidavit of his instructing solicitor, Mr Grove, who deposes his client’s belief that the administration of justice demands that proceedings like this should be conducted openly and publicly, and that a court should be very cautious about overturning long-standing principles relating to open administration of justice.
However, he has proposed some orders for the court’s consideration, which would enable aspects of the applicant’s identity to be concealed from the knowledge of the general community but would enable his client to report the matter. He says that such an order would strike a proper balance between the concerns that Mr Reeves has raised on behalf of his client and that he, on behalf of the media, raises on behalf of his client and the general public.
Mr Reeves appears for the applicant herself. Today I was provided with a further affidavit, which his client had sworn on 9 October 2002. Annexed to that affidavit is a letter from Comcare in which reference is made to a medical report from a Doctor Ding, who is a consultant psychiatrist.
Regrettably, that report was not properly attached to the affidavit. It was overlooked. It was not provided to Mr James with the other material. As I said earlier, I am not going to hold some inquisition into why that was so and why that has occurred. Anyway, I have been provided with the medical report now. Mr James has voiced his objection to that medical report coming before me at this late stage and I have overruled his objection. The writer of the report has diagnosed the applicant as suffering from a psychological condition, because of what she alleges has occurred to her. Accordingly, the report assumes some importance in the context of her application. I will return to the report in greater detail in a moment.
It is Mr Reeves’ case that the proper administration of justice, when applied to this case, does demand, what he categorises as ‘the limited suppression’ of some details regarding the identity, and in particular the name, of his client. In support of that position, his client deposes that she is afraid of the publicity that would flow if her name or material was released, which could easily lead to her identity being ascertained, as she herself is quite prominent in Aboriginal affairs in the Top End and is part of a large Aboriginal family. Of great moment in the context of these proceedings, is the submission made on her behalf that, as she is so well known within the Top End of the Northern Territory, if her identity were to become known this would have a serious detrimental effect on her ability to proceed with the proceedings. She says that she took proceedings in the Human Rights and Equal Opportunity Commission, because those proceedings were in confidence. The proceedings before the Commission have now been terminated.
So the first basis on which she seeks to have what is characterised as ‘a limited suppression order’ is that she argues that if her name and identity are not concealed, she will not proceed with this matter. She does not say that as a definite proposition. She puts it on a subjunctive basis that she ‘may not’ proceed with the action. She has not made a definite decision in this regard.
Secondly, she raises the fact that she is seeking medical treatment in respect of what she alleges are the consequences of the incident in September 2002. She deposes that she is taking anti-depressant medication and, by implication, if the suppression order is lifted, this will have detrimental consequences for her medical condition.
She says in her affidavit that a suppression order has given her peace of mind in the sense:
“That the proceedings are, to a certain degree, confidential and that people do not know that I’m the one making the claim. I feel a sense of security knowing that my identity or anything leading to the release of my identity will not be made known to the public. I don’t think I will be strong enough to keep proceeding with my claim if my name were to be released to the public.”
Mr Reeves drew my attention to the case of TK v The Australian Red Cross Society (1989) 1 WAR 335. That dealt with a case where the applicants were each haemophiliacs, who had contracted HIV through a contamination of the blood supply. They wished their names to be suppressed. In that case Malcolm, C.J. formed the view that, because of the position in which the applicants were, that is each of them had deposed to the fact that they would feel great distress, prejudice or fear of ostracism if it became publicly known that they were actual or potential AIDS sufferers, it was appropriate to suppress their names and identities from public knowledge. Each of the applicants concerned had deposed that, if there was the possibility of it becoming publicly known that they were HIV sufferers, the potential of them suffering some form of unwarranted social opprobrium would cause them to desist from their actions. This, His Honour concluded, would not serve the ultimate ends of justice, being to enable those who had been wronged to pursue their entitlements to legal remedies in Courts of appropriate jurisdiction. Accordingly, His Honour exercised his discretion to suppress their names. At page 341 he said:
“Public knowledge of the identity of the proposed plaintiff in each of these cases would be likely to defeat the paramount object of the courts, which is to do justice according to law. This is because the proposed plaintiffs would be reasonably deterred from bringing proceedings unless public disclosure of their identities could be prevented.”
It is Mr Reeves’ position that his client does not seek any great restriction on the public’s entitlement to know about these proceedings. The public would know the nature of the allegations made by the applicant and the context in which these allegations had been made. What Mr Reeves sought on behalf of his client was the suppression of her name and any other matters specific to the applicant herself that would enable members of the public to identify her personally. This Mr Reeves characterised as “limited suppression” and as such no great impingement on the public’s right to know about and scrutinise the present proceedings. In this regard he referred me to some reasoning of Brooking J of the Victorian Supreme Court in: Re Application by Former Officer of Australian Security Intelligence Organisation (1987) VR 875 at 876 to 877, where his Honour spoke of “an inherent power to impinge by order…... upon the general principle that the courts shall conduct their proceedings in public”. These impingements could be “great or small” depending on the nature of the circumstances and could range from a witness being able to write down his or her address to, in exceptional circumstances, an entire hearing taking place in camera.
It was Mr Reeves’ position that, because of the particular vulnerability of his client, and because of the fact that she may not decide to proceed with the proceedings if she is publicly identified, that the court’s duty to do justice to her and hear her case, was such that there were exceptional circumstances, which warranted the suppression of publication of her name. But Mr Reeves did not characterise the orders that his client sought as being ones that were such as to curtail to any great degree the principle that the proceedings should be heard in public, as the public would be able to attend the proceedings and the media would be able to publish details of the hearing, other than the name of the applicant herself and such matters particular to her that would tend to identify her.
Mr James is critical of the medical evidence which the applicant has mustered in support of her case. I now have the report of Doctor Ding, the consultant psychiatrist, in which he diagnoses the applicant as suffering from a “chronic adjustment reaction with marked depressive symptoms and some anxiety”. It is clear that the applicant is currently taking some anti-depressant medication.
The report of Doctor Ding was not obtained by the applicant in order to support her current application. Rather, it was prepared in support of a claim for worker’s compensation payments. However, the doctor did indicate that the applicant had conveyed to him that she felt able to pursue the grievances she had against the first-named respondent, because her application was being heard in confidence by the Human Rights Commissioner. At that stage, she apparently told Doctor Ding that she understood that her complaint had major ramifications within her place of employment at the time and it was apparent that the public disclosure of her name was an issue for her.
I agree with Mr James’ submission that it is an exceptional course to restrain the publication of the identity of a party to proceedings. In this regard, I refer to the decision of Computer Interchange Pty Ltd v Microsoft Corporation (1999) 88 FCR 438. This case concerned the application of s.50 of the Federal Court Act, which is in similar terms to s.61 of the Federal Magistrates Act. At p. 442 Madgwick, J. said as follows:
“Section 50 deals expressly with the prevention of information given in open court from entering the wider public arena. As Bowen CJ remarked in Australian Broadcasting Corporation v Parish (1980) 43 FLR 129 at 133- 134, in exercising its discretion under s 50, the Court must weigh the countervailing public interests of open justice against ensuring justice between the parties. The public interest in open justice is a fundamental one: see, for example, Russell v Russell (1976) 134 CLR 495 at 520 per Gibbs J; Harman v Secretary of State for the Home Department [1983] 1 A C 280.
The onus on the party seeking to persuade the Court to make an order pursuant to s 50 is a very heavy one. The alleged prejudice to the party seeking orders to prevent publication of the evidence or the name of a party or witness that have actually been heard in open court must be sufficiently serious that the absence of such an order would actually “prejudice the administration of justice”. As Priestley JA remarked in Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 63, “a case where it would be both practical and right to make such orders would be of the utmost rarity”.
There are undoubtedly few respondents or defendants who would not feel themselves harmed, and often justly so, by the publication of the allegations made against them in litigation. However, such harm alone is not sufficient. Kirby P, commented in John Fairfax Group v The Local Court (NSW) (1991) 26 NSWLR 131 at 142-143:
“It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms. A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise, powerful litigants may come to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported”.”
So it is clear that there have to be exceptional circumstances for me to make the order, which Mr Reeves seeks on behalf of his client.
I accept that it is not sufficient that his client will be merely embarrassed by her name being known.
I have to be concerned about actual prejudice to the administration of justice before any suppression order is made. I have to bear in mind that to suppress the identity of a party may itself prejudice the open administration of justice, which of course is an essential prerequisite to an open and accountable society, such as the one in which we live.
However, it is Mr Reeves’ position that there are such exceptional circumstances in this case, and, in any event, the suppression order he seeks is not one that will prevent the public being aware of the proceedings and so being able to scrutinise and follow them. It is his case that his client is in a position analogous to that of the haemophiliac in TK v The Australian Red Cross Society, who had apparently acquired HIV from the contamination of the blood supply, but was fearful that if his name was publicised that he would be subject to social ostracism. The consequences of this were sufficient to deter him bringing his claim and in effect deny him the opportunity to pursue his proper remedies.
There are other cases which are broadly similar to TK, and in particular E v The Australian Red Cross Society (1991) 27 FCR 310, which again dealt with an application by a person who was bringing proceedings against the Red Cross because of alleged contamination of the blood supply. That person’s name was suppressed because of the unique and small category or group of people to which he belonged, that is HIV sufferers as a result of medical procedures.
Further, there is the matter of A v The Minister for Immigration and Ethnic Affairs (1994) 54 FCR 327. This case concerned an application by a person who was seeking a protection visa and was fearful that if his identity was revealed he would be subject to persecution if his application was in fact unsuccessful and he was, as a result, deported to the country from which he originated.
In that case at p.331 Lindgren J said this:
“The only public interest which the section makes relevant to the existence of the Court’s jurisdiction under it is the public interest in the administration of justice, although other public interests may be relevant to the discretions which arise where jurisdiction exists. The notion of “prejudice to the administration of justice” has been discussed in Australian Broadcasting Corporation v Parish (1980) 43 FLR 129 (FCA/FC) at 132-134 per Bowen CJ and SRD v The Australian Securities Commission (1994) 52 FCR 187 (FCA/Hill J). It suffices to say for present purposes that in my opinion it is in the interests of the administration of justice that a person is aggrieved by a decision of the Tribunal that he or she is not a refugee and who desires to apply under the AD(JR) Act for review of that decision on grounds which are not plainly untenable, should be able to do so without fear of being persecuted as a result of the making of the application.”
This case is somewhat different to the haemophiliac cases and the refugee cases. In those types of cases, it is clear to me, that the publication of the particular applicant’s name would have very severe consequences for each of them. For the haemophiliacs suffering HIV, there was a very real risk of them being the subject of social ostracism by ignorant members of the community and this in turn might very well cause them to abandon their claims against those whom it was alleged had wrongfully contaminated the blood supply. Similarly in the refugee cases, involving persons allegedly fleeing persecution in their countries of origin. If these persons’ names were identified, it might well result in them having a real fear of persecution or even death, in the event of their return to their country of origin. Clearly, such a fear could well result in them determining to abandon an application for a protection visa. These are the high water mark cases in respect of applications for suppression orders. The applicant’s case is not of that status, although she has said that potential publication of her name would cause her to consider abandoning her case.
It is Mr Reeves’ position that the orders that are suggested by Mr Southwood provide a proper balance between the public’s right to know about the nature and content of these proceedings and the particular susceptibility of the applicant. I accept, on the basis of the evidence that I have heard, that the applicant is subject to some sensitivity by reason of the publication of her name and other details that will lead to her identity becoming known and that she may suffer harm, which is greater than the normal embarrassment, discomfort and general unpleasantness that is associated with proceedings such as this one and their resultant publication and dissemination in the media.
I think that there is a real risk that if her name is published and widely disseminated, and her identity generally know, she will desist from these proceedings. That is, after all, what she has deposed in her affidavit. In my view, this may cause some prejudice and damage to the administration of justice, in the sense that a person who has a proper claim, which initially she commenced in the Human Rights and Equal Opportunity Commission in confidence, if she was to abandon that claim because of her fears of being publicly known this may cause some loss of public confidence in the ability of the courts to administer justice.
Subsidiary to this is the sensitivity concerning her medical condition.
I agree with Mr James that the medical evidence is not particularly compelling at this stage. It was prepared in respect of other proceedings. However, I bear in mind that there is the potential for the applicant’s health to be detrimentally affected and that, combined with her concerns about the identification of herself, may add to her coming to the conclusion that she is not willing to proceed with this matter.
The orders that Mr Reeves seeks to have made, on behalf of his client, will not prevent the media being interested in these proceedings. They will not prevent Mr Djerrkura denying any wrong doing on his part. They will not prevent him being critical of the first-named respondent for perhaps bringing these proceedings at a time when he believes that they will cause him the maximum amount of harm. I do not accept that Mr Djerrkura will be denied the opportunity to fully defend the allegations. Similarly, I do not accept that he will be denied the opportunity to obtain evidence from other people who may be aware of the circumstances surrounding the allegations made against him. I will not make any orders that will have the effect of preventing him from publicly denying any wrongdoing on his part. I accept Mr Reeves’ submission that a limited impingement on the principle that proceedings before the court should be conducted openly and in public.
For all these reasons the orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: Lynnette Chin
Date: 3 June 2003
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