Chambers v James Cook University (No 2)

[1995] IRCA 460

CATCHWORDS

PRACTICE AND PROCEDURE - PSEUDONYM - OPEN COURT - hearings in camera - orders suppressing names of complainants - importance of open justice - statutory powers to derogate from open justice - degree of derogation - complaints of sexual nature - approach in criminal jurisdictions.

Industrial Relations Act (1988) ss. 373 and 480
Federal Court of Australia Act (1976) ss. 17 and 50

Scott v Scott [1913] AC 417
J v L & A Services Pty Ltd (unreported judgment of Queensland   Court of Appeal dated 15 February 1993)
ABC v Parish (1980) 29 ALR 228
R v Chief Registrar of Friendly Societies; Ex parte Newcross    Building Society [1984] 1 QB 227
R v His Honour Judge Noud; Ex parte MacNamara [1991] 2 Qd R 86
R v Davis (unreported judgment of Full Court of Federal Court   (Wilcox, Burchett and Hill JJ, dated 23 June 1995)
Rockett v Smith [1992] 1 Qd R 660

BRIAN JOSEPH CHAMBERS v JAMES COOK UNIVERSITY OF NORTH QUEENSLAND
No. QI 158 of 1994

SPENDER J
BRISBANE
25 AUGUST 1995

CORAM:    
PLACE:    
DATE:

MINUTES OF ORDER

THE COURT ORDERS THAT:

Note: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS         )  
COURT OF AUSTRALIA                  )    No. QI 158 of 1994
QUEENSLAND DISTRICT REGISTRY        )

BETWEEN    :    BRIAN JOSEPH CHAMBERS
  Applicant

AND:    JAMES COOK UNIVERSITY OF NORTH QUEENSLAND

Respondent

CORAM:     Spender J
PLACE:     Brisbane
DATE: 25 August 1995

REASONS FOR THE MAKING OF PSEUDONYM ORDERS

Dr Brian Chambers's employment as Senior Lecturer in Theatre at James Cook University was terminated on 2 June 1994 for alleged serious misconduct within the meaning of the Australian Universities Academic Staff Award 1988. On 10 February 1994 Judicial Registrar Boulton ordered that Dr Chambers be reinstated. By notice of motion filed on its behalf on 20 February 1995, James Cook University sought a review of that decision pursuant to s. 377(1) of the Industrial Relations Act (1988) ('the Act').  That review was set down for hearing in Townsville commencing 10 April 1995.

By amended notice of motion filed 3 April 1995, the applicants on the motion for Review, the University, sought certain orders concerning the conduct of the review.  It sought, inter alia, that the review be held in camera or that pseudonym orders be made to protect the identities of certain complainants.

I heard submissions from the parties in relation to this motion in Brisbane on 5 April 1995 and indicated that I would consider the matter.  On 7 April 1995, I ordered:

"1.  At the trial, the persons identified as 'Complainant A' and 'Complainant B' in the Reasons for Judgment of Judicial Registrar Boulton given 10 February 1995 shall be identified as 'Complainant A' and 'Complainant B' respectively.

2.Any publication having the effect of identifying Complainant A or Complainant B as a witness at the trial be prohibited.

3.The publication of anything from the hearing of the trial and the contents of any material filed in these proceedings and in any previous hearing in relation to the matters the subject of the trial be prohibited to the extent that such publication might identify Complainant A or Complainant B.  "

I indicated that my reasons would be published separately.  Following are those reasons.

The amended motion filed 3 April 1995 sought the following orders:

"1.  That the hearing of the application for review of the judgment of Judicial Registrar Boulton dated 10 February 1995 be conducted in camera.

2.That the identity of the persons referred to as Complainants A and B in the proceedings be prohibited from disclosure.

3.That the hearing of this matter be transferred to Brisbane.

4.Such other orders as this honourable court sees fit. "

Paragraph 3, seeking a change of venue for the review, was not pursued by the University at the hearing of the motion on 5 April.

The persons whose identities were sought to be protected by the use of the pseudonyms "Complainant A" and "Complainant B" or by a hearing in camera are ex-students of Dr Chambers.  They lodged the written complaints of sexual harassment which eventually lead to the dismissal of Dr Chambers on 2 June 1994.  It was submitted by counsel for the University that if the proceedings were not in camera or if orders were not made suppressing the identities of the complainants then there was a danger that the complainants would not comply with a subpoena to give evidence or would, if they did comply, give evidence that was less than full and frank.  These concerns stemmed from the fact that the matters about which the complainants were required to give evidence were said to be of a sensitive and personal kind.

The earlier proceedings in this matter before Judicial Registrar Boulton were held in camera by consent of the parties.  Such a course being taken in respect of the review was resisted by the representatives of Dr Chambers.

The provisions of the Act which empower the court to make the orders that were sought by the motion are s. 373(4) (which allows the court to sit in camera) and s. 480 (which allows pseudonym orders to be made). Section 373(4) provides:

"The Court may order the exclusion of the public or of persons specified by the Court from a sitting of the Court if 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. "

Section 480 provides:

"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. "

These provisions are in identical terms to, respectively, s. 17(4) and s.50 of the Federal Court of Australia Act (1976) ('the Federal Court Act').

The long standing general rule is that court proceedings ought to be entirely public: Scott v Scott [1913] AC 417.

Section 373(1) of the Act reflects this position. It provides:

"The jurisdiction of the Court is to be exercised in open court, except so far as this section or another law of the Commonwealth authorises it to be exercised by a Judge sitting in chambers. "

This is identical in terms to s17(1) of the Federal Court Act.

In J v L & A Services Pty Ltd, an unreported judgment of the Queensland Court of Appeal dated 15 February 1993, Fitzgerald PA and Lee J undertook an extensive analysis of positions at common law with respect to when a court should encroach upon the principle of open justice and order that proceedings be held in camera or order the suppression of certain items of evidence, or the names of certain parties or witnesses.  The conclusions they reached were stated at pages 45-48 of the judgment.  I will not go into the detail of their conclusions except to say that the importance of open justice was affirmed and any exceptions to the principle of open justice were interpreted narrowly.  Fitzgerald PA and Lee J, with Pincus J dissenting, set aside orders suppressing the name of an HIV/AIDS sufferer who was a party to civil proceedings for damages for negligence on the part of their employer.

That case was concerned primarily with the common law position in respect of open justice.  The orders sought in the present case are authorised by the statutory provisions outlined above.  As Fitzgerald PA and Lee J recognised at p 45 of their judgment:

"The Commonwealth has enacted legislation with respect to some of its courts (Federal Court of Australia Act 1976, section 50;...but there is no Queensland statute which regulates the approach of the Supreme Court, which is left to determine its procedure in accordance with the common law. "

The provisions of the Federal Court Act, identical the ones applicable in this case, were discussed by Sir Nigel Bowen in ABC v Parish (1980) 29 ALR 228. At p. 232-3 he said:

"This court is a court established by statute. It is clear from 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, s. 17(4) and s. 50 provide for encroachment upon that principle.

...

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. "

Franki J said, at 246:

"In my opinion the legislature, by providing as it has specific powers under ss. 17(4) and 50, has intended that the court, in an appropriate case, should exercise these powers.  Whilst every regard must be had to the desirability of conducting proceedings in open court I consider that, where, as in this case, it appears necessary in order to ensure that a party will not be seriously prejudiced to make orders under ss. 17(4) and 50, those orders should be made. "

Here, s. 373(4) allows the court to sit in camera where to do otherwise would be "contrary to the interests of justice". This phrase must be interpreted in light of the injunction contained in s. 373(1) and the fact that holding a hearing in camera constitutes a serious departure from the principle of open justice. Proceedings in camera may be necessary where, for instance, there is a serious risk that large numbers of agitated members of the public would disrupt the proceedings or where a public hearing would deprive a decision of any utility or purpose. In R v Chief Registrar of Friendly Societies; Ex parte Newcross Building Society [1984] 1 QB 227, Sir John Donaldson MR sid, at 235:

"...the first question which we had to ask ourselves was whether and to what extent it would be right that the proceedings in this court should also be in camera.  It is fundamental to British justice as we know it, and as our forebears have known it, that the Queen's courts are open to all.  And when I say they are open to

all, I do not limit this to those who have business in the courts.  The judges administer justice in the Queen's name on behalf of the whole community.  No one is more entitled than a member of the general public to see for himself that justice is done.  Nevertheless it is well settled that occasions can arise when it becomes the duty of the court to close its doors.

This problem was considered in depth by the House of Lords in Scott v Scott [1913] A.C. 417.  The guidance which I get from their Lordships' speeches can be summarised as follows.  The general rule that the court shall conduct their proceedings in public is but an aid, albeit a very important aid, to the achievement of the paramount object of the courts which is to do justice in accordance with the law.  It is only if, in wholly exceptional circumstances, the presence of the public or public knowledge of the proceedings is likely to defeat that paramount object that the courts are justified in proceeding in camera.  These circumstances are incapable of definition.  Each application for privacy must be considered on its merits, but the applicant must satisfy the court that nothing short of total privacy will enable justice to be done.  It is not sufficient that a public hearing will create embarrassment for some or all of those concerned.  It must have shown that a public hearing is likely to lead, directly or indirectly, to a denial of justice. "

As I indicated to the parties at the close of submissions on 5 April 1995, the present case is not one where proceedings in camera would be in the interests of justice.  Here the complainants are concerned about the embarrassment associated with revealing personal information in a public trial that one might expect would attract a degree of media attention.  The embarrassment suffered will not detract from the utility of a decision as to what consequences should justly flow from the conduct of Dr Chambers.  Embarrassment is an unfortunate but unavoidable side effect of our open, adversarial justice system. It is not uncommon in trials where oral evidence is given for key witnesses to undergo embarrassing and relatively distressing cross-examinations.  Accordingly I did not order that the review be conducted in camera.

Section 480 of the Act allows pseudonym orders to be made if they appear to the court to be necessary to "prevent prejudice to the administration of justice". The making of a pseudonym order involves less infringement upon the open justice ideal than an order for proceedings in camera.

The principles to be applied when applying the Federal Court Act's counterpart of this provision were discussed by Bowen CJ in ABC v Parish supra, at 236:

"What s. 50 requires to be considered is prejudice to the administration of justice.  The elements in the administration of justice which are involved on the side of a litigant seeking an order for confidentiality are the public interest in preserving the privacy of confidential arrangements so far as practicable and the public interest in the court's doing justice between the parties, which will be hampered if the very proceedings in which the agreement is under challenge require the efficacy and value of the agreement to be seriously damaged, if not destroyed, before the result of the proceedings is determined.  It appears to me that the learned trial judge has not identified this public interest correctly.

On the other side, is the principle of open justice.  In according weight to this principle, the learned trial judge appears to me to have accorded to it almost the weight it would have if there were to be a very substantial, if not a complete derogation from it.  In such a case, it would, of course, have immense weight.

Although the principle of open justice is of great importance in exercising the discretion under s. 50, it is not necessarily the whole weight of that principle which must be placed in the scales.  The derogation from the principle, which is involved in making any order under s. 50, may be very great; or it may not be great; it may be very small.  In placing that principle in the scales, the degree of derogation involved in the proposed order is an important matter to be considered.

It may be suggested that any encroachment is a threat to the principle.  Warning has been given against judges being a party to creeping erosion of the principle of open justice by their decisions in individual cases (see Scott v Scott [1913] AC 417 at 477-8).  But this court is governed by its statute.  Sections 17 and 50 must be applied. "

The degree of derogation from open justice was also discussed by Williams J in R v His Honour Judge Noud; Ex parte MacNamara [1991] 2 Qd.R. 86 at p103-104. He quoted Lord Widgery CJ in R v Socialist Worker Printers and Publishers Ltd; Ex parte AG [1975] QB 637 at 651-2, and then continued:

"That passage is particularly important for present purposes because it recognises the significant distinction between holding proceedings in camera and holding proceedings in open court but with directions having the consequence of concealing the names of witnesses (with or without a further direction limiting publication of evidence).  That distinction was also recognised by the Full Court of the Federal Court in R v Tait (1979) 46 F.L.R. 386 at 405.  As to the procedure of concealing the name of a witness Lord Widgery said at 652:

'Where one has a hearing which is open, but where the names of the witnesses are withheld, virtually all the desirable features of having the public present are to be seen.  The only thing which is kept from their knowledge is the name of the witness.  Very often they have no concern with the name of the witness except a somewhat morbid curiosity.  The actual conduct of the trial, the success or otherwise of the defendant, does not turn on this kind of thing, and very often the only value of the witness's name being given as opposed to it being withheld is that if published up and down the country other witnesses may discover that they can help in regard to the case and come forward.  That, of course, is not unusual, and if the witnesses' names are not given, it may tend to prevent other witnesses coming forward in that way. '

I agree entirely with that statement; a judge faced with the question whether or not to direct that the name of a witness be withheld must balance the possibility of other witnesses coming forward if that evidence is given full publicity against the possibility of the evidence not being available and therefore justice not being done because of unnecessary media publication of some sordid facts which are of little value to persons outside the court room, except that their publication may have some temporary effect on media ratings. "

There are competing considerations relating to the due administration of justice in the present case.  The factors against the making of pseudonym orders in this case stem directly from the rationale behind the open justice principle.  There is the danger that the evidence of a complainant who is shielded to some extent from scrutiny by anonymity, is not as inherently reliable as that of a witness who is identified.  Also, it is not unknown for the publication of a complainant's name to lead to the emergence of further complainants or other witnesses who could throw more light - either adverse or supportive - on the events surrounding the complaint.

Another important factor was that Dr Chambers resisted the orders sought in the notice of motion of 3 April because, as suggested by the supporting affidavit, he wanted to attempt to clear his name publicly. Dr Chambers was openly identified in the media prior to the review.  Even handed justice would seem to suggest that his detractors also be identified.

Against that, however, is the danger that if the identities of the complainants are not protected, then the complainants in the present case or complainants of this kind in future will be deterred from pursuing their allegations.  The analogy between criminal proceedings and proceedings of the kind in this case is a useful one.  Recently there has been an increased tendency for legislators to protect the identities of victims in criminal cases where the charges involve serious sexual misconduct.  This is to help ensure that acts of a criminal sexual nature do not go unpunished because of a reluctance on the part of victims to come forward.  It might be thought that someone whose rights have been as seriously violated as those of a victim in a criminal sexual assault would be prepared to endure substantial embarrassment in order to prosecute their attacker.  However, experience has shown otherwise and demonstrated that logic can be a clumsy tool when dissecting human behaviour.

Whether this reluctance to come forward can be remedied by protection of complainants' identities from publication is moot.  It seems just as likely that a desire to avoid either facing one's attacker or reliving the experience of the attack is what leads to hesitation on the part of complainants, not simply the embarrassment associated with publicity.

The words the Full Court of the Federal Court in R v Davis, an unreported judgment of Wilcox, Burchett and Hill JJ on 23 June 1995, are relevant in this context:

"[Here] as elsewhere, the media habitually report pre-trial proceedings, including evidence given in committal proceedings.  Whatever their motives in reporting, their opportunity to do so arises out of a principle that is fundamental to our society and method of government: except in extraordinary circumstances, the courts of the land are open to the public.  This principle arises out of the belief that exposure to public scrutiny is the surest safeguard against any risk of the courts abusing their considerable powers.  As few members of the public have the time, or even the inclination, to attend courts in person, in a practical sense this principle demands that the media be free to report what goes on in them.  This includes the names of the parties to proceedings, which are ordinarily known to everyone in court.

There are a few exceptions to this general principle.  One exception concerns people claimed to be victims of crime; particularly sexual offences.  Most, if not all, Australian legislatures have enacted legislation providing anonymity to some such people.  They did so, presumably, because their members felt that publication of those peoples' complaints or evidence might seriously affect their lives, whatever the outcome of the proceedings.  The legislatures apparently made the judgment that, notwithstanding the public interest in freedom to report court proceedings, this consideration justifies suppression of complainants' names in many sexual assault cases.  We felt we should take this community attitude into account in determining whether to allow the complainants' names to be published. "

The present case was finely balanced and, in the end, swayed by what is said to be the minimal interference with open justice of the pseudonym orders and the approach taken in respect of sexual assault victims in criminal jurisdictions, I made the orders on 7 April as outlined earlier.  It was by no means a clear case for the making of the orders and, in hindsight, I cannot say that I am sure that they should have been made.  The statements of McPherson SPJ in Rockett v Smith [1992] 1 Qd R 660 at 667-8, go some way to explaining this hesitation:

"I would regard it as a serious threat to the proper administration of justice according to law if prospective Crown witnesses were gratuitously presented with the expectation that their evidence in court would or might be given under cover of anonymity...Quite apart from the general undesirability of having prosecuting authorities endearing themselves to prospective prosecution witnesses, the discretion to be exercised by the court in a matter like that should not be fettered or affected in advance by promises and representations previously made to witnesses concerning their giving evidence without their true identities being disclosed. "

I would not wish to be taken as encouraging a general rule that complainants in cases making allegations of sexual harassment are entitled as of right to expect anonymity, while persons accused of such conduct can expect no such consideration.

In this case, however, in addition to the earlier history of the matter, the parties had consented to the application to the Judicial Registrar being heard in camera.  In those circumstances, I made the pseudonym orders the subject of these reasons on 7 April 1995.

I certify that the thirteen (13) preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice Spender.

Associate

Date: 25 August 1995

Counsel for the applicant      :         Mr D. R. Cooper
instructed by                  :         Suthers & Taylor

Counsel for the respondent     :         Mr P. Burchardt

instructed by                  :         Mallesons Stephen Jaques

Date of Hearing                :         5 April 1995