Ferguson v Tasmanian Cricket Association (trading as Cricket Tasmania) (No 2)
[2022] FCA 125
•16 February 2022
FEDERAL COURT OF AUSTRALIA
Ferguson v Tasmanian Cricket Association (trading as Cricket Tasmania) (No 2) [2022] FCA 125
File number: VID 697 of 2021 Judgment of: BROMBERG J Date of judgment: 16 February 2022 Catchwords: PRACTICE AND PROCEDURE – r 2.32(3) of the Federal Court Rules 2011 (Cth) – s 37AF and s 37AG of the Federal Court of Australia Act 1976 (Cth) (Act) – application to suppress access to originating application by non-parties – whether r 2.32(3) should be construed commensurately with s 37AG – whether the making of the order sought was justified by any of the grounds in s 37AG – application dismissed Legislation: Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG
Federal Court Rules 2011 (Cth) r 2.32
Cases cited: Ferguson v Tasmanian Cricket Association (trading as Cricket Tasmania) [2021] FCA 1507 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 16 Date of hearing: 16 February 2022 Counsel for the Applicant: Mr M McKenney Solicitor for the Applicant: Wisewould Mahony Counsel for the Interested Party: Mr K Read SC Solicitor for the Interested Party: J.B. Lawyers Counsel for the Respondent: The Respondent did not appear ORDERS
VID 697 of 2021 BETWEEN: RENEE FERGUSON
Applicant
AND: TASMANIAN CRICKET ASSOCIATION TRADING AS CRICKET TASMANIA (ABN 34 009 476 993)
Respondent
ORDER MADE BY:
BROMBERG J
DATE OF ORDER:
16 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The interlocutory application dated 10 February 2022 is dismissed
2.The applicant’s costs of that application, including the costs of today, are reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMBERG J:
At [21]-[23] of the originating application allegations of sexual harassment are made by the applicant against a person whom I will call “Person 1”. Person 1 has filed an interlocutory application by which he effectively seeks an order that, in so far as it refers to him, the originating application be suppressed from publication to persons other than parties in the proceeding.
An order to that effect (although broader in terms of the persons covered) was made by Mortimer J on 30 November 2021 pursuant to r 2.32(3)(b) of the Federal Court Rules 2011 (Cth) (Rules). With some variation, I extended the operation of that order to 11 February 2022 by orders made on 3 February 2022. All of those orders were made for the purpose of providing Person 1 (as well as other persons the subject of sexual harassment allegations made in the originating application) with an opportunity to exercise their right to apply for suppression orders. So much is set out in the reasons of Mortimer J published as Ferguson v Tasmanian Cricket Association (trading as Cricket Tasmania) [2021] FCA 1507 at [12], the reasoning of which I adopted when making the orders on 3 February 2022.
As Mortimer J observed in Ferguson at [4], the originating application is a document which, under the Rules, a non-party is entitled to inspect. Her Honour went on to point out (at [5]) that the rationale for non-parties being given a right to inspect certain documents in a proceeding, including pleadings, is part of the operation of the open justice principle. As her Honour went on to say:
This principle finds expression in s 17 and s 37AE of the Federal Court of Australia Act 1976 (Cth) … . The basic characteristic of open justice is that the public are, as Rares J said at [29] [of Llewellyn v Nine Network Australia Pty Ltd (2006) 154 FCR 293], 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.
As her Honour noted at [7], r 2.32(3) of the Rules is one of a number of exceptions to the application of the open justice principle. 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.
Importantly, Mortimer J at [8] continued:
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.
With respect to her Honour, I agree with and adopt those observations. Accordingly, I would only make the order sought by Person 1 if I was satisfied that the power in s 37AF(1) should be exercised on the basis of one of the grounds in s 37AG(1) of the Federal Court of Australia Act 1976 (Cth) (Act).
Those provisions provide as follows:
37AF Power to make orders
(1) The Court 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.
…
37AG Grounds for making an order
(1)The Court 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).
Person 1 has filed an affidavit in support of his interlocutory application. In that affidavit, he gives some detail of his work, business and professional life including various roles he has held in sporting organisations in Tasmania. Person 1 deposed, and I generally accept, that his reputation is vital to the performance of his current work role. However, the protection of a person’s reputation does not, of itself, find expression in any of the grounds upon which a suppression order may be made under s 37AG(1).
The affidavit then addresses the nature of Person 1’s relationship with the applicant and denies several of the allegations made against him by the applicant in this proceeding. None of that material engages with any of the grounds in s 37AG(1) of the Act.
Lastly, in his affidavit Person 1 addressed what he called the impact on his mental health. He deposed that when the allegations made by the applicant first surfaced in 2018, it had a significant impact on his mental health and his family’s life in general. He stated that he had not suffered mental health issues before and that as a result of the allegations being made he suffered from anxiety and often felt depressed. He stated that after the applicant’s employer rejected the applicant’s allegations he and his family were able to heal and move on. He then said that since the allegations made by the applicant “had resurfaced [his] mental health has deteriorated and [he] often feel[s] anxious and depressed as a result”.
Although not supported by any medical evidence, I accept that evidence as an expression of Person 1’s feelings of anxiety and depressive mood.
Sometimes, an adverse effect on the mental health of a person may be so serious as to threaten the safety of that person. Whilst para (c) of s 37AG(1) was not expressly relied upon, such circumstances may engage that paragraph and a suppression order could then be made if it were necessary to protect the safety of that person. Although I accept that the term “safety” ought to be broadly construed, the material relied upon by Person 1 does not demonstrate that Person 1’s safety requires protection or, more particularly, that a non‑publication order is necessary to protect his safety.
Counsel for Person 1 relied only on para (a) of s 37AG(1) of the Act, contending that the order sought by his client is necessary to prevent prejudice to the proper administration of justice. The matters that were said to ground the order sought on that basis were that the litigation was at an early stage, that Person 1 was not a party to the litigation, that Person 1 was not the subject of the more serious and extensive allegations made by the applicant in the proceeding and that the reputation of Person 1 should be protected.
In the course of submissions, it was suggested that Person 1 would be content for an order to extend only to the conclusion of the mediation which has been ordered in this proceeding. It was said that the allegations do not need to be in the public domain prior to the conclusion of any mediation.
Whilst one can sympathise with the predicament in which Person 1 finds himself, particularly if he is right to say that he is innocent of the allegations made against him, it is not apparent how any of the matters relied upon by Person 1 provide a basis for a conclusion that the order sought by him is necessary to prevent prejudice to the proper administration of justice.
For those reasons, the interlocutory application made by Person 1 will be dismissed.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromberg. Associate:
Dated: 17 February 2022
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