CAP21 and Comcare (Compensation)

Case [2023] AATA 3361

CAP21 and Comcare (Compensation) [2023] AATA 3361 (3 August 2023)

Division:GENERAL DIVISION

File Number(s):     2018/7279

2014/5839

Re:CAP21  

INTERLOCUTORY APPLICANT

Re:Gregory Haywood  

APPLICANT

ComcareAnd  

RESPONDENT

DECISION

Tribunal:Mr S. Webb, Member

Date:3 August 2023

Place:Canberra

Applications for confidentiality orders refused.

....................[SGD].........................

Mr S. Webb, Member

Catchwords

PRACTICE AND PROCEDURE – request for confidentiality orders in respect of past decisions – discretionary power to make orders – factors relevant to exercise of discretion in respect of a witness – alleged prejudice and reputational harm from publication of identity – procedural fairness – allegations made but not put to witness – evidence given in public – public hearing – no adverse findings – embarrassment and distress – request for confidentiality orders not made out – application refused

Legislation

Administrative Appeals Tribunal Act 1975, s 33, 35, 39, 43, 44

Safety, Rehabilitation and Compensation Act 1988, s 5A, 5B, 14

Cases

Ainsworth and Anor v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564

ASIC v PTLZ [2008] FCAFC 164

Australian Broadcasting Commission v Parish [1980] FCA 33; (1980) 29 ALR 228

Australian Securities and Investments Commissions v Administrative Appeals Tribunal [2009] FCAFC 185

CAP21 v Administrative Appeals Tribunal [2022] FCA 729

Haywood and Comcare (Compensation) [2016] AATA 667

Haywood and Comcare [2021] AATA 504

Johnston v Cameron [2002] FCAFC 251

Lee v Deputy Commissioner of Taxation [2023] FCAFC 22

Minister for Immigration and Multicultural and Indigenous Affairs v X [2005] FCAFC 217

Naude v DRA Global Limited [2023] FCA 493

R v Millan [2018] WADC 110

Re A Taxpayer and Federal Commissioner of Taxation; Re sub nom Applicant QT2002/262 and Commissioner of Taxation (2004) 81 ALD 473

Re Le and Secretary, Department of Education, Science and Training [2006] AATA 208

Re Pochi and Minister for Ethnic Affairs (1979) 36 FCR 482

REASONS FOR DECISION

Mr S. Webb, Member

3 August 2023

  1. CAP21 gave evidence as a witness in proceedings resulting from two applications made by Gregory Haywood: application 2014/5839 and application 2018/7279 (substantive applications). Mr Haywood’s applications were for review of decisions by Comcare to refuse claims he made for compensation. The Tribunal published decisions in each of the substantive applications: Haywood and Comcare (Compensation) [2016] AATA 667 (2016 Decision) and Haywood and Comcare [2021] AATA 504 (2021 Decision).

  2. Shortly after the 2021 Decision was published, CAP21 applied for confidentiality orders to prohibit or restrict publication of CAP21’s name or information tending to reveal CAP21’s identity under s 35(3) of the Administrative Appeals Tribunal Act 1975 (AAT Act). The application was heard and determined in a further decision of the Tribunal: Haywood and Comcare 2018/7279, 12 April 2021 (Confidentiality Decision). CAP21 lodged an appeal against this decision in the Federal Court of Australia. The Court made confidentiality orders to protect the utility of the proceedings before it. In the result of the appeal, the Court set aside the Tribunal’s Confidentiality Decision and remitted the…

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CAP21 and Comcare (Compensation) [2023] AATA 3361
Case
[2023] AATA 3361
Decision Date

CaseChat Overview and Summary

This decision concerned applications by CAP21 for confidentiality orders in relation to previous decisions of the Administrative Appeals Tribunal (AAT) and the Federal Court. The dispute arose from Mr Haywood's claim for compensation against Comcare for an alleged injury sustained in his previous employment with the Commonwealth Department of Environment, which he asserted was caused by circumstances involving CAP21, his former supervisor. Mr Haywood had made allegations of bullying, sexual harassment, and unfair treatment against CAP21. The matter came before Mr S. Webb, Member, of the Administrative Appeals Tribunal.

The legal issues before the Tribunal were whether to grant CAP21's applications for confidentiality orders to prohibit or restrict the publication of CAP21's name or identifying information in relation to the 2016 Decision and the Confidentiality Decision. CAP21 argued that publication would cause prejudice, reputational harm, embarrassment, and distress, and that as a witness, rather than a party, different considerations applied. CAP21 also contended that prior knowledge of defamatory comments had deterred them from giving evidence and that publication of their identity might have a chilling effect on future witnesses.

The Member found that while CAP21 apprehended significant distress and embarrassment, these apprehensions of professional harm lacked material basis. The Tribunal accepted that different considerations might arise for a witness compared to a party when considering confidentiality under section 35 of the Administrative Appeals Tribunal Act 1975, but emphasised the public interest in open justice. The Member noted that CAP21 was not an innocent bystander, given their direct involvement as a supervisor in the employment circumstances giving rise to Mr Haywood's claim. The Tribunal also found that the assertion that publication would inhibit future Australian Public Service witnesses lacked substance, as public evidence from APS employees in workers' compensation cases was common. The discretion to depart from the principle of public hearings and published decisions, as set out in section 35(5) of the AAT Act, was to be exercised sparingly and only in exceptional cases where there was a real possibility of injustice or serious disadvantage.

CAP21's applications for confidentiality orders were refused.

Orders

Orders of the court

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Background

Background to the litigation

This interlocutory decision addresses CAP21’s applications for confidentiality orders, alone.Facts and procedural history The 2016 Decision, the 2021 Decision and the Confidentiality Decision set out factual findings which it is not necessary to recite in detail for present purposes. The following short background facts are drawn from these decisions to assist understanding. CAP21 and Mr Haywood were employed by the Commonwealth Department of Environment (Department). From in or about 2006 they came into contact with each other as they both shared an interest in a particular rugby club. On 14 November 2011, CAP21 commenced as Director, leading a section in the branch of the Department in which Mr Haywood was employed. CAP21 had supervisory responsibilities in respect of Mr Haywood from November 2011 to July 2012. In 2012, issues arose in respect of Mr Haywood’s conduct in his then employment.[1] Mr Haywood raised allegations of bullying and sexual harassment against CAP21. Mr Haywood’s allegations included CAP21 using the word ‘cunt’ in a work meeting on 31 January 2012 when reciting a ‘joke’ from a television program the previous evening which he found to be offensive. There is a controversy over the particular circumstances in which this occurred. The issues escalated and were considered by the Professional Standards Section of the Department and subsequently by the Merit Protection Commission[2]. Mr Haywood’s allegations were found to be lacking substantiation by the Merit Protection Commission.[3][1] ST20.[2] Exhibit R6, folios 32-240.[3] ST40. On 9 December 2013, Mr Haywood claimed compensation for an alleged injury in his previous employment by the which he first noticed on 6 July 2012. The claimed injury allegedly arose from circumstances in his employment involving CAP21, his then supervisor. Mr Haywood asserts CAP21 was biased against him and treated him unfairly. Mr Haywood alleged he was falsely accused of wrongdoing in the workplace in a code of conduct counselling session with CAP21 and another person, and he was inappropriately pressured to sign a document. In November 2014, Comcare decided to refuse Mr Haywood’s compensation claim on grounds the adjustment disorder he suffered, which amounted to a ‘disease’ for the purposes of s 5B of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), was the result of reasonable administrative action taken in a reasonable manner in respect of his employment, and it was therefore excluded as an ‘injury’ under s 5A of the SRC Act. Mr Haywood applied for review of this decision by the Tribunal: application 2014/5839. On 31 August 2016, the Tribunal (differently constituted) decided to affirm Comcare’s decision and published written reasons: the 2016 Decision. In the context of these proceedings, Mr Haywood made allegations of bullying, sexual harassment and unfair treatment by CAP21 (among others) in his employment by the Department. On 28 May 2014, Mr Haywood filed an application in the Fair Work Commission seeking a stop bullying order against CAP21 and 7 other Departmental employees under s 789FC of the Fair Work Act 2009.[4] [4] 2021 Decision at [29] and [31]-[34]; Exhibit R6, Documents 2 and 3 refer.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Shortly after the 2021 Decision was published, CAP21 applied for confidentiality orders to prohibit or restrict publication of CAP21’s name or information tending to reveal CAP21’s identity under s 35(3) of the Administrative Appeals Tribunal Act 1975 (AAT Act). The application was heard and determined in a further decision of the Tribunal: Haywood and Comcare 2018/7279, 12 April 2021 (Confidentiality Decision). CAP21 lodged an appeal against this decision in the Federal Court of Australia. The Court made confidentiality orders to protect the utility of the proceedings before it. In the result of the appeal, the Court set aside the Tribunal’s Confidentiality Decision and remitted the matter to the Tribunal to be determined according to law: CAP21 v Administrative Appeals Tribunal [2022] FCA 729 (Remittal). The Tribunal made interim confidentiality orders to protect the utility of the remitted proceedings. Subsequently, in the context of the remitted proceedings, CAP21 applied for confidentiality orders in respect of the 2016 Decision and the Confidentiality Decision. Mr Haywood opposed CAP21’s applications for confidentiality orders and made his own application for orders to prohibit publication of his name or to expunge the 2016 Decision and the 2021 Decision. My Haywood’s application is the subject of a separate decision. This interlocutory decision addresses CAP21’s applications for confidentiality orders, alone.Facts and procedural history The 2016 Decision, the 2021 Decision and the Confidentiality Decision set out factual findings which it is not necessary to recite in detail for present purposes. The following short background facts are drawn from these decisions to assist understanding. CAP21 and Mr Haywood were employed by the Commonwealth Department of Environment (Department). From in or about 2006 they came into contact with each other as they both shared an interest in a particular rugby club. On 14 November 2011, CAP21 commenced as Director, leading a section in the branch of the Department in which Mr Haywood was employed. CAP21 had supervisory responsibilities in respect of Mr Haywood from November 2011 to July 2012. In 2012, issues arose in respect of Mr Haywood’s conduct in his then employment.[1] Mr Haywood raised allegations of bullying and sexual harassment against CAP21. Mr Haywood’s allegations included CAP21 using the word ‘cunt’ in a work meeting on 31 January 2012 when reciting a ‘joke’ from a television program the previous evening which he found to be offensive. There is a controversy over the particular circumstances in which this occurred. The issues escalated and were considered by the Professional Standards Section of the Department and subsequently by the Merit Protection Commission[2]. Mr Haywood’s allegations were found to be lacking substantiation by the Merit Protection Commission.[3][1] ST20.[2] Exhibit R6, folios 32-240.[3] ST40. On 9 December 2013, Mr Haywood claimed compensation for an alleged injury in his previous employment by the which he first noticed on 6 July 2012. The claimed injury allegedly arose from circumstances in his employment involving CAP21, his then supervisor. Mr Haywood asserts CAP21 was biased against him and treated him unfairly. Mr Haywood alleged he was falsely accused of wrongdoing in the workplace in a code of conduct counselling session with CAP21 and another person, and he was inappropriately pressured to sign a document.

Ratio Decidendi

Legal Principle Established

CAP21’s submissions in respect of professional harm or prejudice lack substance, although I accept CAP21 apprehends significant distress and embarrassment will result from publication of CAP21’s name and information which tends to identify CAP21. CAP21’s apprehensions in respect of colleagues and subordinates, and about future promotions, can readily be understood, but on the present materials these apprehensions of professional harm have no material basis. On balance, I am not satisfied this reason justifies departing from the principle in s 35(5) and exercising the discretion to make the orders sought under s 35(3) and (4). Prejudice to the administration of justice CAP21 asserts particular consideration should be given to CAP21’s status as a witness who is not a party to the substantive proceedings. The proposition runs on two legs. Firstly, CAP21 asserts the publication of the identity of a witness raises different considerations than publication of the identity of a party. Secondly, CAP21 argues prior knowledge of defamatory comments in the 2021 Decision would have deterred CAP21 from giving evidence in the proceedings, and publication of Cap21’s identity might have a chilling effect on the willingness of witnesses to voluntarily come forward to assist Comcare or to give evidence in Tribunal proceedings. With regard to the first leg of CAP21’s assertion, I accept different considerations might arise when addressing a confidentiality application under s 35 in respect of a witness rather than a party in proceedings. Nevertheless, the public interest in the principles of open justice must be considered in the particular factual circumstances of any case and this must be weighed against any reasonable justification to suppress the identity of a witness.[40] [40] Minister for Immigration and Multicultural and Indigenous Affairs v X [2005] FCAFC 217 per Heerey and Weinberg JJ at [21]-[22]; R v Millan [2018] WADC 110 at [37]-[38]. There are some difficulties characterising CAP21 as a witness who is an innocent or disinterested bystander who would prefer not to be involved in determination of Mr Haywood’s compensation claims. The long history between CAP21 and Mr Haywood, and the antagonistic climate Ms Colwill described between them, underscores the difficulty. While CAP21 has no direct interest in the outcome of Mr Haywood’s compensation claims, the same cannot be said in respect of the circumstances in which he claims he was injured. CAP21 was directly involved as a supervisor and as a senior manager in the employment circumstances Mr Haywood alleges caused the injuries for which he claimed compensation. On the facts, CAP21’s case is distinguished from previous Tribunal cases cited in submissions. CAP21 was not given and did not seek confidentiality orders prior to publication of the 2021 Decision. With regard to the second limb of CAP21’s assertion, the proposition publication of CAP21’s identity would inhibit future APS witnesses lacks substance. Many are the cases in which APS employees with relevant information are called as witnesses to give public evidence in workers’ compensation cases proceeding before the Tribunal. Where necessary, APS witnesses may be summonsed to give evidence under s 40A of the AAT Act. There is a powerful public interest in the Tribunal providing mechanisms for review which are impartial, proportionate and promote public trust and confidence: s 2A. The principle set out in s 35(5) is an important feature of the merits review scheme the AAT Act provides. It is for this reason the conduct of Tribunal hearings in public and the publication of Tribunal decisions with explanatory reasons are the norm. As Brennan J made very clear in Re Pochi and Minister for Immigration and Ethnic Affairs,[41] the discretion to depart from the principle should be exercised sparingly, in exceptional cases out of the ordinary run, where there is a real possibility of doing injustice to or inflicting serious disadvantage upon a party or a witness if the proceedings are in public, or publication of the proceedings would be contrary to the public interest.[41] (1979) 2 ALD 23 at 53-56.