Ferguson v Tasmanian Cricket Association (trading as Cricket Tasmania)
[2021] FCA 1507
•30 November 2021
FEDERAL COURT OF AUSTRALIA
Ferguson v Tasmanian Cricket Association (trading as Cricket Tasmania) [2021] FCA 1507
File number(s): VID 697 of 2021 Judgment of: MORTIMER J Date of judgment: 30 November 2021 Catchwords: PRACTICE AND PROCEDURE – Federal Court Rules 2011 (Cth) r 2.32(3) – restriction of access to originating application by non-parties – originating application not yet served on respondent – order restricting access limited until after originating application served on respondent Legislation: Federal Court of Australia Act 1979 (Cth), ss 17, 37AE, 37AF, 37AG
Federal Court Rules 2011 (Cth), rr 2.32, 16.02
Cases cited: Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836; 154 FCR 293
Messenger v Commonwealth of Australia [2017] FCA 879
Porter v Australian Broadcasting Corporation [2021] FCA 863
Rinehart v Rinehart [2014] FCA 1241; 320 ALR 195
Rinehart v Welker [2011] NSWCA 403; 93 NSWLR 311
Rush v Nationwide News Pty Ltd [2018] FCA 357; 359 ALR 473
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 16 ORDERS
VID 697 of 2021 BETWEEN: RENEE FERGUSON
Applicant
AND: TASMANIAN CRICKET ASSOCIATION (TRADING AS CRICKET TASMANIA)
Respondent
ORDER MADE BY:
MORTIMER J
DATE OF ORDER:
30 NOVEMBER 2021
THE COURT ORDERS THAT:
1.Pursuant to r 2.32(3)(b) of the Federal Court Rules 2011 (Cth), the Originating Application in this proceeding be restricted from publication to persons other than parties in this proceeding.
2.Unless extended by further order, this order expires at 2.15pm on the day following the filing of a Notice of Address for Service by the respondent.
3.Upon the respondent filing a Notice of Address for Service, the Registrar is to advise the respondent of this order.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MORTIMER J:
On Friday 26 November 2021, the applicant filed an originating application in this Court, seeking an apology, and damages for economic and non-economic loss arising from what she alleges were acts of sexual harassment between 2015 and 2017, said to have been perpetrated by people the applicant describes as employees of the respondent (Cricket Tasmania). There is no statement of claim accompanying the originating application, but the originating application contains relatively detailed allegations.
On Sunday 28 November 2021, a media outlet not party to the proceeding made a request under r 2.32 of the Federal Court Rules 2011 (Cth) to inspect and take a photocopy of the originating application.
No notice of address for service has been filed by the respondent under r 5.02, and no affidavit of service has been filed by the applicant.
The originating application is a document which, under the Rules, a non-party is entitled to inspect: see r 2.32(2)(a).
The rationale for non-parties being given a right to inspect certain documents in a proceeding, including pleadings, is, as Rares J explained in Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836; 154 FCR 293 at [29], the operation of the open justice principle. This principle finds expression in s 17 and s 37AE of the Federal Court of Australia Act 1976 (Cth) (FCA Act). The basic characteristic of open justice is that the public are, as Rares J said at [29], entitled to see “what is the controversy brought to the court for resolution by it in its ordinary function as a court”. Access to the foundation documents in a proceeding enables the public to understand and follow the resolution of the controversy by the Court. Access also permits fair and accurate reporting of proceedings by the media, which in itself is capable of supporting and advancing the operation of open justice.
It is not the Court’s role, through the operation of its rules about inspection of court documents, to supervise whether the media report on matters in a fair and accurate way. In my respectful opinion, the Court should be astute not to enter into a supervision role of this kind. The responsibility for fair and accurate reporting lies with the media themselves. In this regard, see the comments of Wigney J in Rush v Nationwide News Pty Ltd [2018] FCA 357; 359 ALR 473 at [193]-[194].
There are a number of exceptions to the application of the open justice principle, including in relation to inspection of court documents. Rule 2.32(3) provides:
However, a person who is not a party is not entitled to inspect a document that the Court has ordered:
(a)be confidential; or
(b)is forbidden from, or restricted from publication to, the person or a class of persons of which the person is a member.
The term “confidential” is not defined in the Rules, but the relationship between the content of r 2.32(3) and the legislative scheme set out in ss 37AE, 37AF, 37AG, 37AI and 37AJ of the FCA Act is clear. In my respectful opinion, it would not be appropriate to make an order engaging the terms of r 2.32(3) in relation to inspection where the Court was not satisfied that the power in s 37AF(1) should be exercised on the basis of one of the grounds in s 37AG(1). In the face of the legislative scheme represented by Division 2 of Part VAA of the FCA Act, the content of the term “confidential” in r 2.32(3) should be construed commensurately with the grounds set out in s 37AG of the FCA Act, read with s 37AE and s 37AF.
At this stage of this proceeding, where no notice of address for service has been filed, but the Court can reasonably expect there will be one filed, given the respondent is a State organisation, there is a real risk of prejudice to the proper administration of justice tending in favour of a limited order being made under r 2.32(3). That is because the respondent would, in the ordinary course of the proceeding, after being served with the originating application and filing a notice of address for service, have an entitlement to apply to the Court for a suppression order over the originating application or parts of it, or apply for an order under r 2.32(3). The respondent would bear the onus of satisfying the Court it was appropriate for such an order to be made and would need to confront the application of the open justice principle, and in particular s 17(1) and s 37AE of the FCA Act, which provide (respectively):
Except where, as authorized by this Act 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.
In deciding whether to make a suppression order or non‑publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.
Those provisions need to be read, in the context of the particular issue here, in light of the considerations set out in Llewellyn, and the matters to which I have referred above.
The recent principal authorities which have considered the making of orders under r 2.32(3) and/or s 37AF in proceedings where there have been allegations that a party contends should not be in the public domain have occurred in circumstances where there has been an active contest about the making of orders which depart from open justice principles, after one party has exercised an entitlement to seek such orders: see, e.g., Porter vAustralian Broadcasting Corporation [2021] FCA 863 at [51(1)]; Rush at [186]; Rinehart v Rinehart [2014] FCA 1241; 320 ALR 195 at [23]; Rinehart v Welker [2011] NSWCA 403; 93 NSWLR 311 at [27]. That is the appropriate way for the situation to be resolved.
Permitting inspection before a notice of address for service has been filed deprives the respondent of the opportunity to exercise the right it has as a party to apply for suppression orders, and to make submissions about why they are appropriate. It is not in the interests of the administration of justice to deprive a party of that right in circumstances where the respondent is likely to be unaware of the non-party access request and the time to exercise any right to seek suppression orders has not yet arisen.
An order under r 2.32(3) can be made for a limited period of time, and can be tailored so as to allow for no more than the prompt exercise of this right, if the respondent chooses to do so. If the respondent does not act promptly, the order under r 2.32(3) will expire and any non-party will be able to inspect, and copy, the originating application.
In Messenger v Commonwealth of Australia [2017] FCA 879, Kerr J made orders similar to those I have decided are appropriate. In that decision, his Honour referred (at [1]) to the fact that the Registrar had drawn his Honour’s attention to whether certain matters pleaded in the statement of claim could be contended to be inconsistent with r 16.02(2).
Without at all questioning that suggestion to Kerr J in the context of the proceeding in Messenger, it is important to emphasise that in this proceeding, the order under r 2.32(3) is not being made because of any apprehension that the material in the present application is “scandalous” as that term is used in r 16.02(2). This is a proceeding concerning allegations of sexual harassment. The content of the allegations is inherently likely to be of a sexual nature. That fact alone does not make the allegations “scandalous”.
For these reasons, I am satisfied that in order to prevent prejudice to the administration of justice, it is appropriate to make an order that the originating application remain confidential for a limited period of time until a notice of address for service is filed. The respondent will then need to move expeditiously if it seeks any continuation of the order.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer. Associate:
Dated: 30 November 2021
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