Cawood v Refund Group Pty Ltd - [2011] FMCA 558

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CAWOOD v REFUND GROUP PTY LTD & ANOR

[2011] FMCA 558

PRACTICE & PROCEDURE – Application for orders by consent to “suppress” court file – source of power – considerations – application refused.

Federal Court of Australia Act 1976; ss.17(1), 17(4), 23, 50, 61
Federal Court Rules; O35, r1, O46, r6
Federal Magistrates Act 1999; ss.13(2), 13(7), 15, 18, 61, 61(c)
Federal Magistrates Court Rules2001; rr.2.08(4), 13.04, 16.01

Computer Interchange Pty Ltd v Microsoft Corporation [1999] FCA 198
DJL v The Central Authority (2000) 201 CLR 226
Re Australian Broadcasting Commission; PBL Marketing Pty Limited & Ors; Robert James Parish & Ors v Robert James Parish & Ors; Australian Broadcasting Commission (1980) 43 FLR 129

Applicant:

JENNI MICHELLE CAWOOD

First Respondent:

REFUND GROUP PTY LTD

Second Respondent:

WAYNE ORMOND

File Number:

BRG 220 of 2010

Judgment of:

Jarrett FM

Hearing date:

16 June 2011

Date of Last Submission:

16 June 2011

Delivered at:

Brisbane

Delivered on:

21 July 2011

REPRESENTATION

Solicitors for the Applicant:

Carter Newell Lawyers

Solicitors for the Respondent:

DLA Piper

ORDERS

The application filed on 9 June, 2011 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 220 of 2010

JENNI MICHELLE CAWOOD

Applicant

And

REFUND GROUP PTY LTD

First Respondent

WAYNE ORMOND

Second Respondent

REASONS FOR JUDGMENT

(As corrected)

This application was commenced on 15 March, 2010. In it, the applicant claims, amongst other things, compensation for alleged breaches of the Sex Discrimination Act 1984. The respondents have filed a response wherein they deny the claims made by the applicant.
There has been no delivery of formal pleadings, such as a statement of claim or a defence, although attached to the application and forming part of it are the grounds upon which the applicant seeks the orders set out in her application. Those grounds contain allegations of fact and of law.
As part of their response, the respondents have set out the grounds relied upon by them in answer to the grounds relied upon by the applicant.
The application was listed for a further directions hearing on
15 June, 2011 (to deal with any outstanding interlocutory issues) and for final hearing for six days commencing 25 July, 2011. However, in May, 2011 the applicant and the respondents, by their solicitors, signed a draft consent order containing an order: “That the pleadings in the Federal Magistrates Court matter BRG220 of 2010 be sealed and not released or copied without further order of the Court”. On 25 May, 2011, an order was made in Chambers to that effect.
At a directions hearing on 26 May, 2011, I was informed that the parties had compromised the application and that the trial dates could be vacated. I made an order to that effect and, pending the filing of a notice of discontinuance, I adjourned the application to a date to be fixed in February, 2012. I was informed that the settlement agreement was confidential and consequently, the agreement would not be put before the court, and because the proceedings were to be discontinued (upon completion of the terms of settlement) no other orders were necessary.
On 9 June, 2011 the respondent filed an application in a case, wherein they seek the following orders:
1. That the file in the Federal Magistrates Court matter BRG 220 of 2010 be suppressed, and removed from the e-Search facility, and not be accessible by the public in any manner, without further Order of the Court.
2. Liberty to apply.”
It is that application which I am now to determine.
No affidavit material was filed in support of the application, and the applicant, by her solicitors, made only brief submissions in support of the orders sought. The respondents, by their solicitors, made no submissions in support of the orders sought.
In the applicant’s brief submissions, it was argued that the court’s power to make the first of the orders sought was to be found in rule 13.04 of the Federal Magistrates Court Rules 2001. That rule is in the following form:
13.04 Application for order by consent
(1) The parties to a proceeding may apply for an order in terms of an agreement reached about a matter in dispute in the proceeding by filing a draft consent order signed by each party.
(2) The draft consent order must state that it is made by consent.
(3) The Court may make such orders as the Court considers appropriate in the circumstances.
(4) If a Registrar has power to make the order, the Registrar may, unless the Registrar considers that the matter should be brought before the Court, make an order in accordance with the terms of the draft consent order.
This court is not a court of general jurisdiction, but rather it is a statutory court in the manner explained by the High Court of Australia in
DJL v The Central Authority (2000) 201 CLR 226 at [25]. No consent by the parties can give this court jurisdiction or power where that jurisdiction or power is not expressly conferred by a legislative enactment or, in respect of jurisdiction where the subject matter of the application is otherwise within the Court’s associated jurisdiction established by s.18 of the Federal Magistrates Act 1999.
The issue here, however, is not so much one of jurisdiction as it is of the Court’s power to make the orders sought. The primary proceedings are clearly within the Court’s jurisdiction. In my view, rule 13.04 does not authorise the court to make an order, which it otherwise does not have power to make.
FMCR 16.01 was identified as a source of power to make the order sought. That rule is in the following terms:
16.01 Court may make any judgment or order
The Court may, at any stage in a proceeding on the application of a party, give any judgment or make any order even if the claim was not made in an originating process.
Section 15 of the Federal Magistrates Act 1999 provides:
15 Making of orders and issue of writs
The Federal Magistrates Court has power, in relation to matters in which it has jurisdiction, to:
(a) make orders of such kinds, including interlocutory orders, as the Federal Magistrates Court thinks appropriate; and
(b) issue, or direct the issue of, writs of such kinds as the Federal Magistrates Court thinks appropriate.
There are, however, limits upon the power conferred by s.15 of the Federal Magistrates Act and FMCR 16.01. Those limits are to be found in ss.13(2), 13(7) and 61 of the Federal Magistrates Act. The prima facie position established by the Federal Magistrates Act is that proceedings are to be heard in open court: ss.13(2) and 13(7). The position is similar to that which exists in the Federal Court. In Re Australian Broadcasting Commission; PBL Marketing Pty Limited & Ors; Robert James Parish & Ors v Robert James Parish & Ors; Australian Broadcasting Commission (1980) 43 FLR 129 Bowen CJ explained the position as it pertains to the Federal Court. It is worth setting out at length his Honour’s remarks. Speaking of the Federal Court, the Chief Justice said at 132 – 134:
This Court is a court established by statute. It is clear from

sub-s.17(1) of the Federal Court of Australia Act 1976 that in general it is obliged to exercise its jurisdiction in open court.

This provision gives statutory force to the principle that justice must be administered publicly in open court and gives recognition to the weight of public interest which attaches to that principle.
However, sub-s.17(4) and s.50 provide for encroachment upon that principle. Under sub-s.17(4) the public or some of the public may be excluded where the Court is satisfied their presence would be "contrary to the interests of justice". We are all familiar with cases where this would be so. Thus, it is common to exclude persons who are to give evidence, lest they be led to trim their evidence. Again, where demonstrators or rioters would disrupt the proceedings, it may be in the interests of justice to exclude them. The categories of cases where exclusion will be proper are not closed. It will lie in the discretion of the judge, bearing in mind the injunction contained in sub-s.17(1) and taking into consideration the interests of justice referred to in sub-s.17(4).
Under s.50 an order may be made forbidding or restricting the publication of particular evidence or the name of a party or witness where it appears to the Court "to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth". Again, we are familiar with cases where an order forbidding or restricting publication is appropriate. Thus, where the proceedings concern a secret process and publication of the process would destroy the subject matter of the proceedings and render them nugatory, an order is necessary to prevent prejudice to the administration of justice. Where proceedings are brought to restrain publication of confidential material, similar considerations apply. Disclosure would prejudice the Court's proper exercise of the function it was appointed to discharge, to do justice between the parties.

The possible cases where an order may be necessary to prevent prejudice to the administration of justice range fairly widely.

The categories of this public interest are not closed and must alter from time to time whether by restriction or extension as social conditions and legislation develop (see D. v. National Society for Prevention of Cruelty to Children [1977] UKHL 1; (1978) A.C. 171 per Lord Hailsham at p.230; Science Research Council v. Nasse (1979) 3 W.L.R. 762 per Lord Fraser at p.784 - cases concerning discovery).
The importance of the principle of open justice is not in doubt (see Scott v. Scott (1913) A.C. 417; Russell v. Russell [1976] HCA 23; (1976) 134 C.L.R. 495 per Gibbs J. at p.520) nor is the need to depart from it in the interests of justice on occasion (see Attorney-General v. Leveller Magazine Limited (1979) 2 W.L.R. 247 per Lord Diplock at p.252; cf. Halcon International Inc. v. The Shell Transport and Trading Co. (1979) R.P.C. 97.

Cases which deal with the course a Court should follow where there are no sections corresponding with ss.17 and 50, although illuminating and helpful are not decisive for a Court constituted by an Act containing those sections. Such a Court has the slightly different task of interpreting and applying the statute which governs it.
Open justice is the underlying assumption of s.50, not the criterion it prescribes. The section refers to preventing "prejudice to the administration of justice". This is not a reference to the need to preserve open justice. It is, as I have already suggested, a reference to another public interest, that is, the public interest that the Court should endeavour to achieve effectively the object for which it was appointed: to do justice between the parties.
It is not possible to define in advance the degree of prejudice to the administration of justice, which will justify the making of an order under s.50. The collocation of the alternative phrase "security of the Commonwealth" suggests Parliament was not dealing with trivialities. The case where failure to make an order under s.50 would lead to the destruction of the very subject matter of the suit would seem to be the kind of case which might ordinarily attract the exercise of the discretion. The refusal to make an order in such a case might well defeat the purpose of achieving justice between the parties and disappoint the public interest in having the Court deal responsibly with the confidential affairs of citizens.
Section 50 says the Court may make such order forbidding or restricting publication of certain things as appears to the Court to be necessary in order to prevent prejudice to the administration of justice. In exercising this discretion, I am of opinion the Court should also take into account what s.50 does not mention in terms but what is the underlying assumption upon which it is based, namely, the principle of open justice. the English language does not readily provide the means of describing the process by which this is taken into account. It is a process of judgment. A useful metaphor is that of weighing in the scales the various factors involved. It might be said the process is more complex than such a metaphor would suggest (see Science Research Council v. Nasse, supra at p.771); but that metaphor is the best available.
Weighing in the scales the countervailing public interests involved, the discretion whether or not an order should be made and upon what terms, has to be exercised.
Section 50 of the Federal Court of Australia Act 1976 is in the following terms:
50 Prohibition of publication of evidence etc.
The Court may, at any time during or after the hearing of a proceeding in the Court, make such order forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth.
Sections 17(1) and 17(4) of the Federal Court of Australia Act are in substance equivalent to ss.13(2) and 13(7) of the Federal Magistrates Act. Section 61 of the Federal Magistrates Act is, in substance, to the same effect as s.50 of the Federal Court of Australia Act. Section 61 is in the following terms:
61 Prohibition of publication of evidence etc.
The Federal Magistrates Court may, at any time during or after the hearing of a proceeding 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.
Note: See also section 121 of the Family Law Act 1975 in relation to family law or child support proceedings.
In Computer Interchange Pty Ltd v Microsoft Corporation [1999] FCA 198 Madgwick J had to consider whether the Federal Court had power to make an order which restrained the respondents from publishing any details of the proceedings then before the Court, until further order of the Court. The proceedings concerned allegations by Microsoft of certain intellectual property rights infringements by the applicant. Microsoft had secured certain Anton Pillar orders earlier, and, as Madgwick J put it:
The applicants' main concern is the damage likely to be caused to the company's reputation and commercial trading if it becomes known to consumers that products, allegedly infringing the respondents' trademark, had been found at its premises.

The applicants contend that the respondents would have a strong interest in publicising the results of the "raid" as a warning to other suppliers and retailers that such action can and will be taken if they are suspected of dealing with or selling infringing products. Therefore, the applicants seek to limit the potential of such adverse publicity
The applicant argued that s.23 of the Federal Court of Australia Act and Federal Court Rules O35, r1 authorised the making of the restraint. Microsoft argued that s.50 of the Federal Court of Australia Act limited the Court’s powers to make orders prohibiting the publication of information arising from particular proceedings.
His Honour concluded:
10 The power of the Court, as a statutory court, to make an order must be founded in legislation. Section 23 generally authorises the Court to make such orders as it considers appropriate in relation to matters in which the Court has jurisdiction. Whether the Court has jurisdiction in the "matter" is not in issue. However, s 17 provides:
"(1) Except where, as authorized by this section or another law of the Commonwealth, the jurisdiction of the Court is exercised by a Judge sitting in Chambers, the jurisdiction of the Court shall be exercised in open court.
...
(4) The Court may order the exclusion of the public or of persons specified by the Court from a sitting of the Court where the Court is satisfied that the presence of the public or of those persons, as the case may be, would be contrary to the interests of justice."
11 The requirement in s 17(1) that, unless that section or another law of the Commonwealth otherwise provides, the jurisdiction of the Court will be exercised "in open court" carries with it the clear implication that there is to be no restraint upon the publication of proceedings that occur in open court. This accords with the importance of the tradition of open justice to be found in the common law. As McHugh JA stated in John Fairfax & Sons v Police Tribunal (1986) 5 NSWLR 465 at 481:
"The rules of statutory construction no longer accord to common law rights the presumption of immunity from statutory interference which they once enjoyed. Nonetheless some common law rights are of such importance that an intention to repeal or amend any of them will only be attributed to the legislature when the language of its statute is unmistakably clear. I think that the right to publish a fair and accurate report of court proceedings is a common law right of sufficient significance to fall within this preferred category. The importance which the common law has attached to a fair and accurate report of court proceedings is illustrated by the rule that its publication is not a contempt of court even though it is likely to prejudice the fair trial of pending proceedings ... It is also illustrated by the rule that a fair and accurate report of court proceedings made in good faith is not an actionable defamation. Without the publication of the reports of court proceedings, the public would be ignorant of the workings of the courts whose proceedings would inevitably become the subject of the rumours, misunderstandings, exaggerations and falsehoods which are so often associated with secret decision making. The publication of fair and accurate reports of court proceedings is therefore vital to the proper working of an open and democratic society and to the maintenance of public confidence in the administration of justice. It is a right which can only be taken away by words of plain intendment."
12 The only exceptions to the principle of open justice to be found in the Act are s 17(4) and s 50. No other statute was suggested to be relevant. It seems to me that, having regard to the subject matter of those sections and to the deeply entrenched traditions, to which I have referred, Australian courts should work in public. The general power of the Court to make orders pursuant to s 23 should not be construed so as to thwart limitations imposed by those sections upon derogation from the notion of open justice.

I leave for future consideration whether there may be highly unusual and exceptional occasions when, in the interests of justice, some manner of suppression of an aspect of proceedings in the Court other than those contemplated by s 17(4) and s 50 would be plainly called for. There is no occasion for me to consider whether, in all circumstances, the effect of s 17(1) is to prohibit suppression of proceedings in the Court except as authorised by s 17(4) or s 50.
13 It is inherent in open justice that any person, including a party to the proceedings, be free to publish anything which arises from those proceedings, unless the Court is satisfied that it should exercise its discretion under s 50. Even so, the exercise of the Court's discretion is restricted to the protection of the particular values mentioned in s 50 by the particular means referred to in that section. It cannot be exercised in a way that would permit, for example, the making of an order as proposed by the applicants, to forbid a party from seeking to publicise "any details" of the proceedings: see Nationwide News Pty Ltd v District Court of NSW (1996) 40 NSWLR 486 at 498, per Meagher JA.

For the same reasons expressed by Madgwick J in Computer Interchange Pty Ltd (above), it seems to me that whatever the extent of the power that is conferred by FMCR 16.01, it does not extend to making the primary order sought by the parties in this application. That order offends the principle of open justice which underpins ss.13(2), 13(7) and 61 of the Federal Magistrates Act. Those sections limit the extent of the Court’s power under FMCR 16.01.
It might be that the order sought by the parties falls within the power provided in s.61(c) of the Act. As appears from the section itself, however, occasion to make any order permitted by the section only arises if the court is satisfied that it is necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth.
No submissions were advanced so as to attempt to establish that the order sought was necessary for either of those purposes.
In submissions it was also suggested that the order was necessary because the parties had agreed that it was necessary so as “simply to limit any further negative effects of the claim in relation to media and publicity. This was a fairly key element in the mediation and also the settlement between the parties.” But there is no evidence before me to that effect, nor was there any attempt to place that evidence before me. In any event, even if what is asserted is so, that would, in my view be insufficient to engage s.61.
Although the applicant, by her solicitor, conceded that access to “the pleadings” was prevented by the orders of the court presently in place, the real purpose of the orders now sought was to restrict access to the file details via the federal law search facility on the Commonwealth Courts Portal ( It was submitted that “if they searched the e-search facility the listing comes up and all of the details comes up – the documents that have been filed and all of the events and the proceedings to date – and the type of claim and the relevant detail”.
Whilst the federal law e-search facility might provide a person using that facility with a list of documents on the file, and a list of the events that had occurred, copies of the relevant documents are not available, nor are particulars of what occurred at the various events (which nonetheless occurred in open court). Presently, the only way to view documents on the court file is to physically inspect the file.
Rule 2.08(4) FMCR provides that O46, r6 of the Federal Court Rules applies to the searching of records in a proceeding that is not a family law or child support proceeding. Order 46, r6 of the Federal Court Rules has various limits upon what documents will be made available to parties and non-parties who wish to search the court file in relation to a particular matter. No argument was directed to the adequacy of those rules in this case to achieve the ends desired by the parties.

Conclusion

I am not satisfied that it is necessary, in order to prevent prejudice to the administration of justice or the security of the Commonwealth, to make the order that the parties propose. If the order is one properly sought under FMCR 16.01, I would apply the same considerations to the exercise of the discretion that arises under that rule and similarly refuse the application.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Date: 21 July 2011

CORRECTIONS:

·Front page to include second respondent.
·Page 1 of Reasons for Judgment to include second respondent.
·Citation to include second respondent.
·In paragraph 5 of the Reasons for Judgment deleted the word applicant and replaced with the word respondent.
·In paragraph 5 of the Reasons for Judgment deleted the words she seeks and replaced with the words they seek.