FEDERAL COURT OF AUSTRALIA
Fraser-Kirk v David Jones Limited [2010] FCA 1060
Citation: Fraser-Kirk v David Jones Limited [2010] FCA 1060 Parties: KRISTY ANNE FRASER-KIRK v DAVID JONES LIMITED (ABN 75 000 074 573) AND ORS File number: NSD 964 of 2010 Judge: FLICK J Date of judgment: 29 September 2010 Catchwords: PRACTICE AND PROCEDURE – particulars sought but not provided – undertaking sought to protect identity of unnamed persons referred to in Amended Statement of Claim – form of undertaking – order of Court sought – powers of the Court – necessity to promptly disclose information to enable meaningful defences to be filed – inspection of documents by the public Legislation: Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth)
Federal Court of Australia Act1976 (Cth)
Federal Court RulesCases cited: Australian Broadcasting Commission v Parish (1980) 43 FLR 129, cited
Dye v Commonwealth Securities Ltd [2010] FCAFC 115, cited
Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118, considered
Hadid v Lenfest Communications Inc (1996) 70 FCR 403, cited
Hogan v Australian Crime Commission [2010] HCA 21, 240 CLR 651, followed
John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131, followed
Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836, 154 FCR 293, considered
Mijac Investments Pty Ltd v Graham [2010] FCA 896, cited
P v Australian Crime Commission [2008] FCA 1336, 71 ATR 555, cited
Witness v Marsden [2000] NSWCA 52, 49 NSWLR 429, cited
W R Carpenter Holdings Pty Ltd v Commissioner of Taxation [2006] FCA 1252, 234 ALR 451, considered
Y v University of Western Australia (No 2) [2006] FCA 466, 151 FCR 322, consideredDate of hearing: 27 September 2010 Date of last submissions: 28 September 2010 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 64 Counsel for the Applicant: Ms R Francois Solicitor for the Applicant: Harmers Workplace Lawyers Counsel for the First Respondent and Third to Eleventh Respondents: Mr B Walker SC with Ms K Eastman Solicitor for the First Respondent and Third to Eleventh Respondents: Norton Rose Australia Counsel for the Second Respondent: Mr A B Gotting Solicitor for the Second Respondent: Johnson Winter & Slattery
IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY
GENERAL DIVISION
NSD 964 of 2010
BETWEEN: KRISTY ANNE FRASER-KIRK
ApplicantAND: DAVID JONES LIMITED (ABN 75 000 074 573)
First RespondentMARK MCINNES
Second RespondentROBERT SAVAGE
Third RespondentJOHN COATES
Fourth RespondentSTEPHEN GODDARD
Fifth RespondentREG CLAIRS
Sixth RespondentJOHN HARVEY
Seventh RespondentKATIE LAHEY
Eighth RespondentPETER MASON
Ninth RespondentPHILIPPA STONE
Tenth RespondentPAUL ZAHRA
Eleventh Respondent
JUDGE:
FLICK J
DATE OF ORDER:
29 SEPTEMBER 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The Counsel and legal advisers to the Respondents be released from the undertakings given on 23 September 2010.
2.The Amended Notice of Motion as filed on 27 September…
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Details
- Case
- [2010] FCA 1060
- Decision Date
CaseChat Overview and Summary
Fraser-Kirk v David Jones Limited involved a dispute where the plaintiff sought particulars from the defendants, which were not provided. The defendants, in turn, sought an undertaking to protect the identity of unnamed persons referred to in the plaintiff's Amended Statement of Claim. The case was heard by the Federal Court of Australia, where the primary legal issue was whether the Court should grant an undertaking to protect the identity of unnamed persons, the form of such an undertaking, and the necessity of promptly disclosing information to enable meaningful defences to be filed.
The Court found that the principle of open justice required that all material placed in evidence before a court be open to public scrutiny. It was noted that the power to suppress names or evidence under section 50 of the Federal Court of Australia Act was strictly limited to circumstances in which it appeared to the Court that an order was “necessary … to prevent prejudice to the administration of justice”. The Court rejected the defendants' argument that the allegations were scandalous, untested, and of a deeply personal and private nature. Instead, the Court held that the principle of open justice operated on the premise that all the material placed in evidence before a court and on which it was asked to act was open to public scrutiny.
The Court dismissed the Amended Notice of Motion and ordered that the particulars previously requested by the defendants be provided forthwith, no later than 30 September 2010. The Court also ordered that such particulars as had been requested by the defendants in respect to paragraph [40A] of the Amended Statement of Claim be provided by no later than midday on 13 October 2010. If those particulars were not provided, that paragraph of the Amended Statement of Claim was to be struck out. The plaintiff was ordered to pay the costs of and incidental to the hearing of the Amended Notice of Motion filed on 27 September 2010. The defendants were ordered to file Amended Defences no later than 5.00 pm on 15 October 2010, and the proceeding was set down for hearing commencing on 20 December 2010.
The Court found that the principle of open justice required that all material placed in evidence before a court be open to public scrutiny. It was noted that the power to suppress names or evidence under section 50 of the Federal Court of Australia Act was strictly limited to circumstances in which it appeared to the Court that an order was “necessary … to prevent prejudice to the administration of justice”. The Court rejected the defendants' argument that the allegations were scandalous, untested, and of a deeply personal and private nature. Instead, the Court held that the principle of open justice operated on the premise that all the material placed in evidence before a court and on which it was asked to act was open to public scrutiny.
The Court dismissed the Amended Notice of Motion and ordered that the particulars previously requested by the defendants be provided forthwith, no later than 30 September 2010. The Court also ordered that such particulars as had been requested by the defendants in respect to paragraph [40A] of the Amended Statement of Claim be provided by no later than midday on 13 October 2010. If those particulars were not provided, that paragraph of the Amended Statement of Claim was to be struck out. The plaintiff was ordered to pay the costs of and incidental to the hearing of the Amended Notice of Motion filed on 27 September 2010. The defendants were ordered to file Amended Defences no later than 5.00 pm on 15 October 2010, and the proceeding was set down for hearing commencing on 20 December 2010.
Orders
Orders of the court
1. The Counsel and legal advisers to the Respondents be released from the undertakings given on 23 September 2010.
2. The Amended Notice of Motion as filed on 27 September 2010 is dismissed.
3. Subject to Order 4, the particulars previously requested by the Respondents are to be provided forthwith and, in any event, no later than 30 September 2010.
4. Such particulars as have been requested by the Respondents in respect to paragraph [40A] of the Amended Statement of Claim are to be provided by no later than midday on 13 October 2010.
5. In the event that all such particulars as have been sought in respect to paragraph [40A] are not provided by midday on 13 October 2010, that paragraph of the Amended Statement of Claim is struck out.
6. The Applicant is to pay the costs of and incidental to the hearing of the Amended Notice of Motion filed on 27 September 2010.
7. Amended Defences are to be filed by all Respondents no later than 5.00 pm on 15 October 2010.
8. The proceeding is set down for hearing commencing on 20 December 2010.
9. Liberty to apply is reserved to any of the parties to apply on two days’ notice in writing.
Note:
Background
Background to the litigation
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Evidence
Evidence Before The Court
And, finally, s 50 provides as follows:Prohibition of publication of evidence etc. (1)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. (2)This section does not limit section 23HC. Section 23HC has no relevance to the present proceeding. But the power conferred by s 50 is strictly confined to those circumstances in which it appears to the Court that an order is “necessary … to prevent prejudice to the administration of justice …”. “Open justice”, it has been said, “is the underlying assumption of s 50”: P v Australian Crime Commission [2008] FCA 1336 at [55], 71 ATR 555 at 565 per Emmett J. And, in that context, the word “necessary” is a “strong word”: Hogan v Australian Crime Commission [2010] HCA 21 at [30], 240 CLR 651 at 664 per French CJ, Gummow, Hayne, Heydon and Kiefel JJ. An application seeking the non-publication of names in another claim alleging sexual harassment has recently been considered by a Full Court of this Court in Dye v Commonwealth Securities Ltd [2010] FCAFC 115. An order was there made prohibiting the disclosure of the name of a female but not a male until further order. Subsequent consideration led to the order in respect to the female being changed such that her name too was not to be suppressed: Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 (“Dye (No 2)”). In that case it was the former employer of the appellant who was seeking the suppression order. In resolving the claim, the Full Court there concluded: [120] The vice of CommSec’s submissions is their failure to identify a jurisdictional foundation for how any such order falls within the power of the Court in the circumstances. They referred to the High Court’s decision in Hogan v Australian Crime Commission (2010) 267 ALR 12 asserting that s 50 of the Federal Court of Australia Act requires the Court to determine that an order to suppress a name or evidence must be necessary with respect to the administration of justice and “… is not concerned with trivialities”. CommSec asserted that the allegations were “scandalous, untested … and of a deeply personal and private nature”. That was the very argument rejected in Scott v Scott [1913] AC 417; Dickason 17 CLR 50; R v Hamilton (1930) 30 SR (NSW) 277; Llewellyn v Nine Network Australia Pty Ltd (2006) 159 FCR 293 at 298–299 [28], 300 [35]–[37] per Rares J; see too McPherson v McPherson [1936] AC 177.[121] The principle of open justice operates on the premise that all the material placed in evidence before a court and on which, in open court, it is asked to act is open to public scrutiny. That is because publicity itself has the purposes of both informing the public of how judicial power is exercised and ensuring that the courts are accountable for the use of that power entrusted to them. Administrative power can be, and frequently is, exercised in secret. Judicial power almost never is and, when it is, the departure from the ordinary mode of trial must be demonstrated to be necessary in the interests of justice.
Decision
Reasons for decision
No party submitted that any order as to costs should be other than the usual order that “costs should follow the event”. No submission was advanced by any of the Respondents that costs should be awarded on anything other than a “party/party” basis. CONCLUSIONS It is concluded that the Amended Notice of Motion should be dismissed and that the Applicant should pay the costs of the Respondents of and incidental to the present hearing. Those costs would extend to costs of and incidental to the matter first being re-listed on 23 September 2010, as well as on 24 and 27 September 2010, and also such costs as will be incurred in the filing of Amended Defences. Counsel for the Respondents did not oppose extending to the Applicant the opportunity to have 14 days within which to obtain the “consent” of those persons named in paragraph [40A] of the Amended Statement of Claim. Amended Defences should be filed immediately thereafter. The concept, however, of “witness consent” as referred to in paragraph 3 of the Amended Notice of Motion has the potential to be truly disturbing. If a party is not in a position when a claim is filed in this Court to make out an allegation in the absence of “witness consent” - and at that time such “consent” has not been forthcoming - it is highly questionable whether such an allegation should be made. Paragraph [40A] of the Amended Statement of Claim raises serious allegations, including an allegation of unspecified “criminal conduct” against an unnamed “Manager”. Whether or not “consent” may ultimately be given or refused, some explanation perhaps may need to be given as to the basis upon which the allegation was first made. A consequence of dismissing the Amended Notice of Motion may also be that it is inappropriate for the present Amended Statement of Claim to continue to fail to name the persons so far not identified. In the absence of an appropriate order of the Court to the contrary, a pleading which does not contain such particulars as are necessary to comply with the Federal Court Rules is a pleading which should not be permitted to remain the vehicle whereby rights are to be determined. In presently accepting the agreement of the Respondents to keep the names confidential as a reason for declining the relief sought in the Amended Notice of Motion, all parties should be aware that no one party can dictate to the Court the manner in which the proceeding will be conducted. Submissions from all parties as to procedural matters will obviously be heard and resolved. But the manner in which litigation is conducted in this Court is not a matter within the exclusive province of the parties. It is the Court that ultimately remains in control of its own procedure and that control needs to address both the interests of the parties and the legitimate public interest in the open administration of justice. Given the concession that (at least at present) an order would not be made pursuant to s 50 suppressing the names of these persons, there must come a time – if it has not already been reached – when the names must be publicly available and the Respondents released from the agreement inter parties to maintain confidentiality.
Ratio Decidendi
Legal Principle Established
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