Dezfouli v State of New South Wales (Justice Health) and anor
[2008] NSWADT 155
•28 May 2008
Set aside by Appeal:
CITATION: Dezfouli v State of New South Wales (Justice Health) and anor (No.2) [2008] NSWADT 155 DIVISION: Equal Opportunity Division PARTIES: APPLICANT
Saeed DezfouliFIRST RESPONDENT
SECOND RESPONDENT
State of New South Wales (Justice Health)
XXXXFILE NUMBER: 081014 HEARING DATES: 8 May 2008 SUBMISSIONS CLOSED: 15 May 2008
DATE OF DECISION:
28 May 2008BEFORE: Hennessy N - Magistrate (Deputy President) CATCHWORDS: Application for Suppression Order MATTER FOR DECISION: Preliminary matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997 CASES CITED: CC v Djerrkura [2003] FMCA 372
Law Society of New South Wales v M (No.2) [2001] NSWADT 54
QR v Commissioner of Police, NSW Police [2005] NSWADTAP 59
Re KB and Minister for Immigration and Ethnic Affairs (1982) 4 ALN N273
Re SJ and Minister for Immigration and Ethnic Affairs (1983) 5 ALN N99
Re VC and Australian Federal Police (1985) 8 ALD 587
Russell v Russell (1976) 134 CLR 495
Scott v Scott [1913] AC 417
Walton v Momot NSWCA, 17 April 1997 unreported, BC9703067REPRESENTATION: APPLICANT
Saeed DezfouliFIRST RESPONDENT
SECOND RESPONDENT
State of New South Wales (Justice Health)
XXXXORDERS: The application for a suppression order is refused.
REASONS FOR DECISION
Introduction
1 Justice Health provides health services to prisoners. An employee of Justice Health applied to the Tribunal for his name to be anonymised in a decision that the Tribunal handed down on 24 April 2008 (Dezfouli v State of New South Wales (Justice Health) and anor [2008] NSWADT 122.) The background to that decision was that Mr Dezfouli is in custody at Long Bay Hospital having been found not guilty of various offences by reason of mental illness. He alleged that the employee, who was the second respondent in the proceedings, came into the shower room when he was naked to give him some papers. Following a short conversation, Mr Dezfouli said that the employee looked him up and down before leaving. Mr Dezfouli believes that the employee is homosexual and that he looked at him in a “gayish” manner.
2 Mr Dezfouli complained that this constituted sexual harassment in breach of the Anti-Discrimination Act 1977. The President of the Anti-Discrimination Board declined the complaint. Mr Dezfouli applied to the Tribunal for leave for the complaint to proceed. The Tribunal refused leave. Following the publication of that decision the employee applied to the Tribunal for an order that his name be deleted from the reasons for decision and that he be given a pseudonym. Mr Dezfouli opposed that application and a hearing on the issue took place on 9 May 2008. The employee’s submission was that the decision contains sensitive personal information and allegations about him. Mr Dezfouli said that the employee’s personal interest in having his name suppressed should not outweigh the public interest in open justice.
Power to suppress the name of a party
3 The general rule is that hearings before the Tribunal are open to the public: Administrative Decisions Tribunal Act 1997 (ADT Act), section 75(1). In addition, unless a suppression order is made, the names of the parties and witnesses are recorded in the written reasons for decision, which are generally published on the internet. That is what occurred in this case. However, neither party submitted that the Tribunal lacks the power to make a suppression order after the decision has been handed down. We are satisfied that we have that power: Law Society of New South Wales v M (No.2) [2001] NSWADT 54 (16 March 2001).
4 The Tribunal has a discretion to prohibit the disclosure of the name and other identifying details of a party or witness: ADT Act, section 75(2). Before doing so the Tribunal must be satisfied that “it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason”. (Emphasis added.) Consequently, the issue for determination in these proceedings is whether it is desirable to anonymise the employee’s name in the reasons for decision because of the confidential nature of the evidence recorded in those reasons or for any other reason.
What is the evidence or matter in the decision that relates to the employee?
5 I have set out below an anonymised version of the material in the decision that relates to the employee.
Legal principles
(a) Mr Dezfouli alleged that on 21 May 2007 the employee “came into the shower room when he was naked to give him some papers.” Mr Dezfouli says that the following exchange took place:
When the matter was investigated by Justice Health, the employee admitted that he came into the shower room with some papers for Mr Dezfouli.
Employee: I got the reports for you.
Mr Dezfouli: Do you mind, I am naked and taking a shower.
Employee: I just wanted to let you know the report is ready.
Mr Dezfouli: Do you understand? I am naked in the shower.
Employee: I will leave it with nurse.
(b) In his complaint to the Tribunal Mr Dezfouli says that the employee looked him up and down. He elaborated on this at the hearing saying that the employee was standing at the door about 4 metres away from him and was looking at him in a "gayish" manner. Mr Dezfouli said that he avoids contact with the gay community and would rather stay in his "straight world".
The employee denied the he looked Mr Dezfouli up and down.
It is apparent that Mr Dezfouli was highly stressed by this incident and that the fact he thinks the employee is homosexual contributed to his state of mind. While we agree with Mr Dezfouli that the conduct was an invasion of his privacy, it does not fall squarely into the category of conduct of a sexual nature. The employee had a reason to communicate with Mr Dezfouli, namely to give him a copy of the report. He stood at the door, some 4 metres away, and spoke to him. We accept that the employee could see Mr Dezfouli standing naked in the shower from that distance and that he looked at him. Even if he had a particular "look" in his eye, that is very weak evidence that the conduct was of a "sexual" nature. He left as soon as it was apparent that Mr Dezfouli did not want him to be there. While it was inappropriate for him to go into the shower room when Mr Dezfouli was naked, the prospects of proving that the conduct was of a sexual nature are not high.
6 The primary purpose of section 75 is to reinforce the long held and well-established principle of open justice: Scott v Scott [1913] AC 417; Russell v Russell (1976) 134 CLR 495. The rationale for open justice was succinctly summarised in Herald & Weekly Times Ltd v Medical Practitioners Board of Victoria (BC9802329, Supreme Court of Victoria, 10 June 1998 at 17) by Hedigan J:
7 The Appeal Panel of this Tribunal has decided that the discretion to make a suppression order should be “strictly and narrowly construed, and operate only if and when there is a public interest supporting their use which outweighs the public interest in the implementation of the fundamental principles of open justice and procedural fairness”: QR v Commissioner of Police, NSW Police [2005] NSWADTAP 59 at [20].
The reason for the favouring of open hearings is intimately connected with the conduct of public affairs in a democracy, namely, that it is, as a general principle, in the public interest that disputes between State and citizen, and citizen and citizen, not be tried behind closed doors but so that the work of those appointed to decide, the evidence given by witnesses, and the decisions can be scrutinized by all who care to visit. Since not everyone can visit, citizens in a democracy depend to a substantial extent upon accurate and published reporting of what takes place.
8 Interpretation of similar provisions by other courts and tribunals provides guidance on the kinds of circumstances, which may justify a suppression order being made. The test under section 75(2) is whether suppression is “desirable” because of the confidential nature of the evidence or for any other reason. The most directly comparable provision is section 35(2) of the Administrative Appeal Tribunal Act 1975 (Cth). That provision states that the Administrative Appeals Tribunal may make certain kinds of suppression order “[W]here the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason . . .” Pursuant to this provision, the Administrative Appeals Tribunal has made orders prohibiting the publication of the names of applicants. In many cases such orders are made so that an applicant’s medical condition is not disclosed. Other examples are where publicity would prejudice the applicant’s rehabilitation (Re SJ and Minister for Immigration and Ethnic Affairs (1983) 5 ALN N99); where a child is involved (Re KB and Minister for Immigration and Ethnic Affairs (1982) 4 ALN N273) or where a person’s reputation may have been affected if it were known that he was applying to the police for information about himself (Re VC and Australian Federal Police (1985) 8 ALD 587).
9 Other statutes impose an arguably less onerous test for a suppression order to be made. For example, the former Chiropractors and Osteopaths Act 1991 provided that hearings were to be conducted in public but a suppression order could be made “if the person presiding thinks it appropriate in the particular circumstances of the case.” (Emphasis added.) In Walton v Momot (NSWCA, 17 April 1997 unreported, BC9703067) the Court of Appeal decided that the Chiropractors and Osteopaths Tribunal did not make an error of law when it refused to make a suppression order in relation to a chiropractor who faced disciplinary proceedings. One matter put to the Tribunal in that case was that because the chiropractor was blind, the public would be able to identify him. The Tribunal did not find that to be an exceptional circumstance warranting the making of a suppression order. The Court of Appeal upheld the decision saying that since the “prima facie method” for conducting proceedings was that proceedings were open to the public, “something special, exceptional, or out of the ordinary, must be established before the Tribunal can make an order avoiding such a result. . . .”
10 A more onerous provision appears in section 61 of the Federal Magistrates Act 1999 (Cth). That provision gives the Federal Magistrate’s Court (FMC) power to make a suppression order where necessary in order to prevent prejudice to the administration of justice. In CC v Djerrkura [2003] FMCA 372 a Magistrate considered an application for the suppression of the name of the applicant who alleged that she had been sexually harassed by the then Chair of the Aboriginal and Torres Strait Islander Commission. The respondent opposed the order and did not wish to have his name suppressed. The Magistrate said that mere embarrassment was not sufficient justification for the applicant’s name to be suppressed. However, the applicant’s name was suppressed because of the real risk that she would not continue with the proceedings if her name were published and the potential for publication to adversely affect her health. The Magistrate also noted that non-publication of the applicant’s name did not prevent the respondent from denying any wrongdoing.
Conclusion
11 In relation to the evidence set out at [5] (a), above, the fact that the employee entered the shower room and had a conversation with Mr Dezfouli is not evidence or matter of a confidential nature relating to the employee nor is there any other reason of which I am aware for that evidence to be suppressed. The incident occurred in the course of the employee carrying out his duties and he has not denied that it occurred.
12 The information set out at [5](b), above includes allegations by Mr Dezfouli that the employee looked him up and down and looked at him in a "gayish" manner. It also includes the employee’s denial that he looked Mr Dezfouli up and down and the Tribunal’s finding that even if the employee had a particular "look" in his eye, that is very weak evidence that the conduct was of a "sexual" nature. Although the employee’s sexual preference is a matter which is confidential, the decision merely records Mr Dezfouli’s opinion of the way in which the employee looked at him and his sexual preference.
13 In general, it is in the interests of open justice for the identity of a person about whom allegations are made to be recorded. Recording that information prevents speculation about that person’s identity and allows the person to respond. In this case the employee has had an opportunity to respond to the allegations and opinions expressed by Mr Dezfouli. The Tribunal made no findings in relation to those assertions and refused to give Mr Dezfouli leave to proceed with the complaint. The employee has not said that the expression of Mr Dezfouli’s opinions disadvantages him in any practical way or affects his reputation. He merely said that the decision contains sensitive personal information and allegations. Although I can understand the employee not wishing to have opinions or assertions about his sexuality publicly recorded, that wish is not sufficient in the circumstances of this case to displace the interests of open justice.
14 In case Justice Health wishes to appeal against this decision on the employee’s behalf, I have not referred to the name of the employee in these reasons.
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