DFT22 v Australian Taxation Office
[2022] FedCFamC2G 883
Federal Circuit and Family Court of Australia
(DIVISION 2)
DFT22 v Australian Taxation Office [2022] FedCFamC2G 883
File number(s): SYG 1122 of 2022 Judgment of: JUDGE LAING Date of judgment: 26 October 2022 Catchwords: PRACTICE AND PROCEDURE – application for non-publication and suppression orders – whether orders necessary to prevent prejudice to the proper administration of justice – whether orders necessary to protect the safety of any person - application granted Legislation: Australian Human Rights Commission Act 1986 (Cth) s 46PO
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 229, 230, 231, 232
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 2.11
Cases cited: AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) [2019] HCA 6; (2019) 93 ALJR 321
Bianca Hope Rinehart v Georgina Hope Rinehart [2014] FCA 1241; (2014) 320 ALR 195
BSL22 v BSM22 [2022] FCA 558
Ferguson v Tasmanian Cricket Association (trading as Cricket Tasmania) [2021] FCA 1507
Huikeshoven v Secretary, Department of Education, Skills and Employment [2021] FCA 1359
National Australia Bank Limited v KRDV [2012] FCA 543
Taylor v Nationwide News Pty Limited [2021] FCA 664
Division: Division 2 General Federal Law Date of hearing: 28 September 2022; 24 October 2022 Number of paragraphs: 20 Counsel for the Applicant: Ms L Andelman Solicitor for the Applicant: Kingsford Legal Centre Solicitor for the Respondent: Ms E Petrie (Moray & Agnew) ORDERS
SYG 1122 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DFT22
Applicant
AND: THE AUSTRALIAN TAXATION OFFICE
Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
26 OCTOBER 2022
THE COURT ORDERS THAT:
1.Pursuant to s 230 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), until further order of the Court:
(a)The applicant continue to be referred to by the pseudonym DFT22 in connection with these proceedings; and
(b)Publication of any information tending to reveal the actual name, address, email or phone number of the applicant in connection with these proceedings is prohibited, except that the Court and Court staff, the parties to the proceedings and their legal representatives and witnesses in the proceedings may identify the applicant for the purposes of or associated with the proceedings.
2.Order 1 is made on the grounds specified in s 231(1)(a) and (c) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
3.The registry must take such steps as are reasonably necessary to ensure that any document filed in these proceedings to which public access is granted, or that is released to any person, is first redacted to any extent necessary so as not to reveal the actual name, address, email or phone number of the applicant.
4.The costs of and incidental to the application for suppression and non-publication orders are reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING
In these proceedings, the applicant contends that the respondent discriminated against him on the ground of disability. The applicant seeks a declaration to this effect, pursuant to s 46PO(4)(a) of the Australian Human Rights Commission Act 1986 (Cth). The applicant also seeks a number of other orders, including that the alleged discrimination not repeat or continue, that he be reinstated and provided with reasonable adjustments, and that he receive compensation. The proceedings are at an early stage.
A request for access to the application and statement of claim filed in these proceedings has been made by a non-party, associated with The Australian Financial Review. As the request was received prior to any document being filed by the respondent, interim suppression orders were made restricting access to documents prior to this occurring and the respondent being notified of the access request: see Ferguson v Tasmanian Cricket Association (trading as Cricket Tasmania) [2021] FCA 1507. A notice of appearance was filed by the respondent on 30 August 2022. As a suppression application was subsequently foreshadowed, orders were made extending the interim suppression orders.
The matter was listed for directions on 6 September 2022. Orders were then made requiring the parties to file and serve any formal application for suppression, together with any evidence and submissions, by 19 September 2022.
On 19 September 2022, an application seeking suppression and non-publication orders was lodged on behalf of the applicant together with evidence and submissions. The application was listed for hearing on 28 September 2022. On that occasion, evidence was relied upon by the applicant to the effect that a proposed witness (a Psychiatrist) had not been able to produce a report by the time required for the filing of evidence. Some additional time was sought and granted. However, orders were made limiting the scope of the interim orders so as to permit access to material in respect of which suppression had not ultimately been sought.
Further submissions and evidence were filed on 18 October 2022. The resumed hearing of the application for suppression and non-publication orders occurred on 24 October 2022. The application was unopposed.
For the reasons that follow, I have determined that the application ought to succeed.
RELEVANT PRINCIPLES
Part 7 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) governs the making of suppression and non-publication orders. Sections 229 to 232 provide:
229 Safeguarding public interest in open justice
In deciding whether to make a suppression order or non-publication order, the Federal Circuit and Family Court of Australia (Division 2) must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.
230 Power to make orders
(1)The Federal Circuit and Family Court of Australia (Division 2) may, by making a suppression order or non-publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:
(a)information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or
(b)information that relates to a proceeding before the Court and is:
(i)information that comprises evidence or information about evidence; or
(ii)information obtained by the process of discovery; or
(iii)information produced under a subpoena; or
(iv)information lodged with or filed in the Court.
(2)The Federal Circuit and Family Court of Australia (Division 2) may make such orders as it thinks appropriate to give effect to an order under subsection (1).
231 Grounds for making an order
(1)The Federal Circuit and Family Court of Australia (Division 2) may make a suppression order or non-publication order on one or more of the following grounds:
(a)the order is necessary to prevent prejudice to the proper administration of justice;
(b)the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;
(c)the order is necessary to protect the safety of any person;
(d)the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).
(2)A suppression order or non-publication order must specify the ground or grounds on which the order is made.
232 Procedure for making an order
(1)The Federal Circuit and Family Court of Australia (Division 2) may make a suppression order or non-publication order on its own initiative or on the application of:
(a) a party to the proceeding concerned; or
(b)any other person considered by the Court to have a sufficient interest in the making of the order.
(2)Each of the following persons is entitled to appear and be heard by the Federal Circuit and Family Court of Australia (Division 2) on an application for a suppression order or non-publication order:
(a) the applicant for the order;
(b) a party to the proceeding concerned;
(c)the Government (or an agency of the Government) of the Commonwealth or a State or Territory;
(d)a news publisher;
(e)any other person who, in the Court’s opinion, has a sufficient interest in the question of whether a suppression order or non-publication order should be made.
(3)A suppression order or non-publication order may be made at any time during a proceeding or after a proceeding has concluded.
(4)A suppression order or non-publication order may be made subject to such exceptions and conditions as the Federal Circuit and Family Court of Australia (Division 2) thinks fit and specifies in the order.
(5)A suppression order or non-publication order must specify the information to which the order applies with sufficient particularity to ensure that the court order is limited to achieving the purpose for which it is made.
A non-party is generally able to inspect a pleading or similar document, unless orders have been made that the document be confidential or otherwise suppressed: r 2.11 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). This accords with the “open justice” principle, which has been stated to be “one of the most fundamental aspects of the system of justice in Australia”: Bianca Hope Rinehart v Georgina Hope Rinehart [2014] FCA 1241; (2014) 320 ALR 195 (Rinehart) at [24].
This principle is also reflected in s 229 of the FCFCOA Act, which requires the Court to “take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice”. The “entitlement of the media to report on court proceedings is a corollary of the right of access to the court by all members of the public”: Rinehart at [27].
A suppression or non-publication order may, however, be made on grounds identified in s 231 of the FCFCOA Act. Those grounds include that “the order is necessary to prevent prejudice to the proper administration of justice”: s 231(1)(a), and/or that “the order is necessary to protect the safety of any person”: s 231(1)(c).
Such orders are not to be lightly made. The word “necessary” has been recognised to be “… a strong word which reinforces the legislative intention that suppression orders should only be made in exceptional circumstances”: Rinehart at [23]. It requires that there “must be some material before the Court upon which it can reasonably conclude that the order is necessary”: Taylor v Nationwide News Pty Limited [2021] FCA 664 at [18]. In this regard, “[c]ogent evidence is needed and a belief that the orders are necessary will not be sufficient”: Huikeshoven v Secretary, Department of Education, Skills and Employment [2021] FCA 1359 at [26].
In considering whether a suppression order was "necessary to protect the safety of any person", Nettle J stated in AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) [2019] HCA 6; (2019) 93 ALJR 321 at [15]:
15.The criterion is not one of necessity to prevent harm to a person but of necessity to protect the safety of a person. And safety is a protean conception which is certainly informed by the nature and gravity of apprehended harm and the risk of its occurrence. To take but one, prosaic example, no one today rationally doubts that the wearing of seat belts while travelling in a motor car is necessary to protect the safety of drivers and passengers. At the same time, it is certainly not the case that, but for wearing a seat belt, it is more probable than not that an occupant of a moving motor car will suffer harm. That is not to suggest that just any risk of harm will suffice. To repeat, the provision is not concerned with trivialities. But what it is intended to convey is that, because the idea of safety invariably entails the assessment of risk, it should be regarded as sufficient to satisfy the test of "necessary to protect the safety of any person" that, upon the evidence, the court is satisfied of the existence of a possibility of harm of such gravity and likelihood that, without the order sought, the risk of prejudice to the safety of the person would range above the level that can reasonably be regarded as acceptable.
There are cases in which the potential for serious exacerbation of underlying medical conditions (including major and chronic depression) has been found to be of such a level that suppression and non-publication orders were necessary to protect the safety of a person: see for example BSL22 v BSM22 [2022] FCA 558 at [12].
There may also be some overlap between this ground under s 231(1)(c) of the FCFCOA Act and s 231(1)(a) (where the order is necessary to prevent prejudice to the proper administration of justice). This is because the potential for harm capable of enlivening s 231(1)(c) may have a stifling effect upon proceedings, and present significant barriers to their determination by the Court: see National Australia Bank Limited v KRDV [2012] FCA 543 at [92].
THE PRESENT APPLICATIOn
The applicant has given evidence that he has been diagnosed with the following conditions:
(a)Autistic Spectrum Disorder;
(b)Depression; and
(c)Anxiety.
His evidence is that the potential for his identity to be disclosed in connection with these proceedings has caused him significant stress and anxiety. He has explained that his autism affects his ability to deal with social and unexpected situations. The potential for his role in proceedings and medical conditions to be made public has resulted in his referral to a Psychiatrist by his General Practitioner. A copy of this referral, within the context of the applicant experiencing “severe anhedonia and demotivation” was annexed to the applicant’s affidavit. The applicant has given evidence that the effect upon him of potential publication of his details has led him to reconsider continuing the proceedings before this Court.
The applicant also relies upon a report by Dr Shaun Tampiyappa, the Consultant Psychiatrist to whom the applicant was referred. Dr Tampiyappa records that the applicant is experiencing extreme anxiety due to the potential publication of his details in connection with these proceedings. Dr Tampiyappa has opined that the combination of the applicant’s particular medical conditions, and his anxiety about the potential impact upon his employment should his details be disclosed, means that the publication of the applicant’s details “would cause a serious deterioration in his Major Depressive Disorder and significantly impact on his ability to carry on working or indeed manage his life”.
Having regard to this evidence, I accept that the particular combination of the applicant’s conditions in this case means that the publication of his details is likely to have a significant deleterious effect on his mental health and safety. I also accept that the extent of this is likely to adversely affect the applicant’s ability to manage his role in these proceedings.
I therefore accept that the making of suppression and non-publication orders protecting the applicant’s identity is necessary to protect his safety within the meaning of s 231(1)(c) of the FCFCOA Act. I also accept that such orders are “necessary to prevent prejudice to the proper administration of justice”: s 231(1)(a) of the FCFCOA Act.
CONCLUSION
On the basis of the above, I will make suppression and non-publication orders in the terms ultimately sought by the applicant.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 26 October 2022
0
8
0