Hoskin v State of Victoria (Dept. of Education and Training)
[2002] FMCA 263
•1 November 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOSKIN v STATE OF VICTORIA (DEPT. OF EDUCATION & TRAINING) | [2002] FMCA 263 |
| HUMAN RIGHTS — Application for interim injunction under s.46PP of the Human Rights & Equal Opportunity Act 1986 — meaning of “maintain”— meaning of “rights” in s.46PP(1)(b) — teacher placed on sick leave on basis of undisclosed psychiatric report — injunction sought to compel production of report — application misconceived. |
| Applicant: | RODGER HOSKIN |
| Respondent: | STATE OF VICTORIA (DEPARTMENT OF EDUCATION & TRAINING) |
| File No: | MZ 1077 of 2002 |
| Delivered on: | 1 November 2002 |
| Delivered at: | Melbourne |
| Hearing Date: | 30 October 2002 |
| Judgment of: | Walters FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Willoughby-Thomas |
| Solicitors for the Applicant: | Martin Willoughby-Thomas |
| Counsel for the Respondent: | Mr Rinaldi |
| Solicitors for the Respondent: | Minter Ellison |
ORDERS
The application of the applicant filed 23 October 2002 be dismissed.
All subpoenas be set aside.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 1077 of 2002
| RODGER HOSKIN |
Applicant
And
| STATE OF VICTORIA (DEPARTMENT OF EDUCATION AND TRAINING) |
Respondent
REASONS FOR JUDGMENT
Before the Court is the application of Rodger Hoskin (“the applicant”) filed 23 October 2002. The application is expressed to be for “interim orders sought pursuant to section 46PP of the Human Rights and Equal Opportunity Commission Act”. The orders sought by the applicant are as follows:
a)That the respondent provide to the applicant, or in the alternative, his lawyer, all documents supporting or relating to the decision to place the applicant on sick leave in August 2002 and the decision to maintain that position in October 2002.
b)That the subpoenaed documents be released to the applicant or, in the alternative, his lawyer.
c)That, until the determination of the substantive application, the Respondent be restrained from taking or maintaining any action against the applicant in breach of the Disability Discrimination Act1992 or the Sex Discrimination Act1984.
d)That the respondent pay the applicant’s costs of and incidental to this application.
e)That the respondent allow the applicant to resume his duties and his classes at Glen Waverley Secondary College.
f)That the respondent pay the applicant’s further costs of and incidental to this application.
g)Such other or alternative orders as the Court deems just or considers appropriate.
The respondent is the State of Victoria (Department of Education and Training).
The application came on for hearing before me on 30 October 2002. At the hearing, counsel for the applicant stated that he did not press for an order in terms of paragraph 5 of the application (or in terms of paragraphs 6 or 7 for that matter). Argument was focused, therefore, upon paragraphs 1 to 4 only — and paragraphs 1 and 2 in particular.
The applicant relied upon his affidavit sworn 23 October 2002. The respondent relied upon the affidavits of Darrell John Fraser (sworn 30 October 2002) and Fiona Elizabeth Blackmore (also sworn 30 October 2002).
The respondent prepared a written Outline of Submissions, which was handed to me at the commencement of the hearing on 30 October 2002.
No formal objection was taken by either party to any of the material relied upon by the other.
The applicant is a teacher. He is employed by the respondent. He has been a teacher for 20 years.
The applicant has taught at Glen Waverley Secondary College since early 2000. It would appear that he was employed at Glen Eira Secondary College for approximately 3 years prior to commencing at Glen Waverley Secondary College.
Mr Fraser is employed by the respondent as principal of Glen Waverley Secondary College.
He has held that position since June 1999.
According to Mr Fraser, there had been certain problems associated with the applicant’s conduct or performance as a teacher since some time in 2000. It appears that there may have been similar problems during the period that the applicant was employed at Glen Eira Secondary College. I cannot and do not make any finding whatsoever regarding these matters.
In or about June 2002 the applicant raised concerns regarding the behaviour of another teacher at Glen Waverley Secondary College towards a female student. According to Mr Fraser “…the substance of (the applicant’s) complaint was to the effect that (the other teacher) may have sexually harassed, or have engaged in otherwise inappropriate interactions with, female students at Glen Waverley Secondary College”.
On 16 July 2002 Mr Fraser directed the applicant to put his complaint in writing. The applicant did so by letter dated 18 July 2002.
By letter dated 29 July 2002, the acting principal of Glen Waverley Secondary College (after consultation with Mr Fraser — who was away at the time) advised the applicant that the allegations and complaints about the other teacher’s conduct had been “thoroughly investigated and found to have no substance”. The letter also referred to certain aspects of the applicant’s previous conduct or behaviour at Glen Waverley Secondary College (relevantly, in relation to the applicant’s working relationships with his colleagues). The letter indicated that the applicant was required “…in accordance with section 6.2.13 of Teaching Service Order 179, to attend a medical appointment with Dr Nigel Strauss…”. Dr Strauss is a Psychiatrist.
Paragraph 6.2.13 of Teaching Order 179 is as follows:
If the Secretary has reason to believe that a teacher’s state of health may make him a danger to other staff or to any pupils, he or she may require such teacher to submit to an examination by a medical practitioner approved by the Secretary or to furnish a medical certificate form a qualified medical practitioner.
Upon receipt of the medical report, the Secretary may direct the teacher to absent himself or herself from duty for a specified period which shall be regarded as absence on sick leave.
Leaving aside the question of whether the applicant could properly have been characterised as “a danger to other staff or to any pupils” (about which I make no finding), the evidence reveals that the applicant attended the appointment with Dr Strauss on 5 August 2002. According to his affidavit, he did so “under protest”.
Prior to the appointment, the acting principal (Mr Schiller) made contact with Dr Strauss. The nature of that contact is described by Mr Fraser in paragraphs 25 to 28 of his affidavit as follows:
25. I am informed by Mr Schiller and believe that on 29 July 2002, Mr Schiller telephoned Dr Strauss to discuss Mr Hoskin’s referral for medical assessment. During that conversation, Dr Strauss asked Mr Schiller to provide him with background on Mr Hoskin’s employment history at GWSC and the details of the conduct which led to his being referred for medical assessment. Dr Strauss also asked Mr Schiller to frame relevant questions for him to answer in relation to Mr Hoskin. These questions concerned Mr Hoskin’s fitness to undertake the responsibilities of teaching, and whether Mr Hoskin demonstrated his understanding of how the outcome of his complaint against (the other teacher) was reached.
26. Between 29 July and 1 August 2001, Mr Schiller e-mailed me a draft report for Dr Strauss which he had prepared in conjunction with (another staff member). I made some amendments to that document and e-mailed it to Mr Schiller.
27. I am informed by Mr Schiller and believe that Mr Schiller provided the report to Dr Strauss during an appointment with him on 2 August 2002. I told Mr Schiller to see Dr Strauss personally in order to explain the complexities of the issues involving Mr Hoskin and his history at GWSC and to express Mr Schiller’s concerns for Mr Hoskin’s wellbeing.
28. Mr Schiller informed me, and I believe, that his appointment with Dr Strauss consisted of Dr Strauss reading the report and asking questions of Mr Schiller on his observations of Mr Hoskin’s behaviour and professional interactions with GWSC.
According to the applicant, he was not made aware of the communications between the school and Dr Strauss prior to his appointment.
According to Mr Fraser, Dr Strauss’s written report (“the Strauss Report”) was received on 12 August 2002. The Strauss Report “…concluded that (the applicant) had a paranoid personality disorder, was not a fit and proper person to undertake the responsibilities of a teacher including duty of care obligations, and recommended that (the applicant) not teach for a period of 6 months and seek psychiatric treatment and discuss issues related to his work problems with his treater”.
As a consequence of the Strauss Report, the applicant was indeed placed on sick leave for a period of 6 months.
The applicant was not shown the Strauss Report, and had not seen it at any time prior to the hearing on 30 October 2002. According to the applicant’s counsel, all that he knows of the contents of the report is the conclusion referred to in Mr Fraser’s affidavit — which conclusion I have quoted in paragraph 19 above.
Since being placed on sick leave, the applicant has taken various steps to endeavour to obtain a copy of the Strauss Report. Those steps are detailed in the applicant’s affidavit. As part of those steps, the applicant was assessed by a psychologist (on 19 August 2002), by his general practitioner (on 20 August 2002) and by two psychiatrists — Dr Wahr (on 27 August 2002) and Dr Gill (on 29 August 2002). None of them was of the view that he is not a fit and proper person to undertake the responsibilities of a teacher. Relevantly, none of them suggested that the applicant has “a paranoid personality disorder”, or any other psychiatric or personality disorder or illness.
Copies of the reports obtained by the applicant were provided to the school and passed on to Dr Strauss. According to Mr Fraser, Dr Strauss read the reports and advised him that “they did not change his opinion regarding (the applicant’s) condition as stated in his initial report”.
On 16 August 2002, the applicant submitted a freedom of information request seeking access to the Strauss Report (amongst other documents). The request comprises annexure RH4 to the applicant’s affidavit. The statutory 45 day period for a decision on the freedom of information request expired on 3 October 2002. The applicant was not provided with a copy of the Strauss Report by that date. On the following day (4 October 2002) the applicant’s solicitor lodged an application with the Victorian Civil and Administrative Tribunal “…in relation to the Department’s failure to respond to the freedom of information request within time or at all” (see paragraph 33 of the applicant’s affidavit). I was advised during the course of the hearing that the applicant’s VCAT application founded on the FOI Legislation is proceeding and is listed for directions on 14 November 2002.
On 4 October 2002 (being the same day as that upon which the applicant commenced the VCAT proceedings), the applicant lodged a complaint with the Human Rights and Equal Opportunity Commission (“HREOC”). The letter comprising the complaint is annexure RH12 to the applicant’s affidavit. It includes the following passage:
…I lodge a complaint of victimisation under the Sex Discrimination Act and a complaint of discrimination and discrimination harassment under the Disability Discrimination Act. In relation to the former, we rely on ss 94(1) and 94(2)(g) and in relation to the latter, we rely on ss 15, 35 and the definition of “disability” in s 4 including the reference to imputed disability.
The complaint also includes the following comments or assertions:
a)“to date, (the applicant) has not been allowed to see either the Fraser Report or the Strauss Report”;
b)“it is travesty that (the applicant) has been suspended for an incredible 6 months on the basis of a secret and negative principal’s report and a questionable psychiatric assessment”; and
c)“it is extraordinary that (the applicant) has not been allowed to resume duties despite four medical assessments to his fitness and repeated representations to the school and the Department”.
I was advised during the course of the hearing that the respondent has until 7 November 2002 to file a response to the applicant’s HREOC complaint.
Prior to the hearing on 30 October 2002, the applicant issued subpoenas to Dr Strauss and to an officer of the Office of School Education requiring the production of certain documents. Relevantly, the applicant sought the production of the Strauss Report and any documents that may have been provided to Dr Strauss by Glen Waverley Secondary College staff prior to the preparation of his report. I was advised by counsel for the respondent during the course of the hearing that all relevant documents were available at Court. The respondent submitted, however, that the subpoenas should be set aside.
It was made clear by counsel for the applicant during the course of the hearing that the applicant’s primary focus is to obtain a copy of the Strauss Report.
The final paragraphs of the applicant’s affidavit are as follows:
60. The refusal by the Department to provide me with the Strauss report and other relevant documents is negating and/or impairing my rights.
61. Further the refusal by the Department to provide me [and thus my lawyer] with the Strauss report and other relevant information is negating and/or impairing my ability to obtain considered legal advice and thus my right of access to justice.
62. The refusal by the Department to allow me to work despite four medical assessments as to fitness is negating and/or impairing my rights.
Clearly, it is not for this Court to determine the merits of the applicant’s complaint to HREOC . That claim will be inquired into and conciliated or otherwise dealt with by the Commission in the performance of its functions.
Section 13 of the Human Rights and Equal Opportunity Commission Act1986 (“the HREOC Act”) provides that HREOC has power to do all acts that are necessary or convenient to be done for or in connection with the performance of its functions. The functions of the Commission described in section 11 of the Act.
The present application is made pursuant to section 46PP of the HREOC Act. Section 46PP is as follows:
46PP(1) At any time after a complaint is lodged with the Commission, the Federal Court or the Federal Magistrates Court may grant an interim injunction to maintain:
(a)the status quo, as it existed immediately before the complaint was lodged; or
(b)the rights of any complainant, respondent or affected person.
46PP(2) The application for the injunction may be made by the Commission, a complainant, a respondent or an affected person.
46PP(3) The injunction cannot be granted after the complaint has been withdrawn under section 46PG or terminated under section 46PE or 46PH.
46PP(4) The court concerned may discharge or vary an injunction granted under this section.
46PP(5) The court concerned cannot, as a condition of granting the interim injunction, require a person to give an undertaking as to damages.
It is clear from the terms of the section itself that this Court has a discretion whether or not to grant an interim injunction — even if an applicant is able to demonstrate that he or she otherwise meets the criteria set out in section 46PP(1).
During the course of the hearing, counsel for the applicant advised me that he was not relying upon the provisions of s.46PP(1)(a). The applicant relied solely upon s. 46PP(1)(b).
In Li v Minister for Immigration & Multicultural Affairs (2001) FCA 1414, Emmett J dealt with applications for orders restraining the Minister from removing the applicants from Australia until the determination of various proceedings (or until the proceedings had reached a more advanced stage). The applicants had not only commenced proceedings in the Federal Court, but they had also made complaints to HREOC about the conduct of the Minister and about the entity operating and managing the detention centre in which the applicants were held. The applicants claimed that their removal from Australia at that stage in the prosecution of the various proceedings would prejudice the further conduct of those proceedings.
In the course of considering the juridical basis for the injunctive relief sought by the applicants, his Honour considered the provisions of section 23 of the Federal Court of Australia Act1976 and section 46PO of the HREOC Act. Section 46PO(6) provides that the relevant Court may, if it thinks fit, grant an interim injunction “…pending the determination of the proceedings”. The proceedings referred to in section 46PO, however, can only occur in the event of a complaint to HREOC being terminated.
Emmett J said (at paragraphs 35 and 36):
35. There is nothing to suggest that s 46PO(6) confers a power beyond the type of power that is conferred by s 23 of the Federal Court of Australia Act. That is to say, the granting of an interim injunction under s 46PO(6) would be limited to circumstances where the injunction was necessary to ensure the effective exercise of the jurisdiction under s 46PO invoked in the proceeding.
36. Section 46PP(1) provides that at any time after a complaint is lodged with the Commission, the Federal Court may grant an interim injunction to maintain the status quo as it existed immediately before the complaint was lodged or the rights of an complainant. The power or jurisdiction conferred by s 46PP likewise is limited to the orders necessary to ensure the effective exercise of the powers of the Commission and the jurisdiction of the Court in the event of an application being made to the Court under the HREOC Act following the determination of a complaint.
I note that the word “determination” in paragraph 36 of his Honour’s decision should probably read “termination” (see section 46PO(1)).
The provisions of section 46PP were also considered by Heerey J in McIntosh v Australian Postal Corporation (2001) FCA 1012. His Honour said:
The expression “interim injunction” (in section 46PP(1)) is used in the New South Wales sense so as to include what Victorian lawyers would call an interlocutory injunction, that is an injunction until the trial and determination of the action…to Victorians, an interim injunction is one issued for a very short period, usually a few days and often ex parte.
The references to section 46PP in Li v Minister for Immigration and Multicultural Affairs and McIntosh v Australian Postal Corporation were considered and applied by McInnis FM in Rainsford v Group 4 Correction Services (2002) FMCA 36. His Honour said at paragraph 35:
When a Court considers the granting of any interim relief, it is appropriate that the Court does apply the normal principles that would otherwise apply at common law to the granting of that interim relief, although I accept that in applying the principles to the exercise of the Court’s discretion under section 46PP, the Court should not regard itself as constrained soley by those common law principles.
See also the decision of McInnis FM in Gardner v National Netball League Pty Ltd (2001) ALR 408.
The respondent argued that paragraphs 1 and 2 of the orders sought by the applicant are not interim injunctions and are not authorised by section 46PP. Further, even if they were authorised by the section, they do not “maintain” the “rights” of the applicant. The respondent also argued that paragraphs 1 and 2 seek to obtain preliminary discovery of documents from the respondent (and production of a third parties’ documents by way of subpoena) in advance of any substantive proceedings in this Court and in advance of the progress of the existing complaint and application in HREOC and VCAT respectively. It was argued that the applicant could obtain a copy of the Strauss Report (and such other documents as are considered relevant) per medium of those proceedings.
In relation to paragraph 3 of the orders sought, the respondent argued that it seeks to impose a legal requirement (not to breach the specified legislation) with which the respondent is already obliged to comply. In my view, the respondent’s submission is clearly correct, and it is inappropriate for this Court to grant an injunction in the terms sought in paragraph 3 — even if the applicant could otherwise bring himself within the provisions of section 66P(1). It is, in essence, a pointless order.
The applicant did not press for an order in terms of paragraph 5 of his application.
An injunction is an order or decree by which a party to an action is required to do, or refrain from doing, a particular thing. According to Osborn’s Concise Law Dictionary (8th edition), injunctions are either restrictive (preventive) or mandatory (compulsive). Further, injunctions are either interlocutory (or interim) or perpetual. A perpetual injunction is granted only after the applicant has established his right and the actual threatened infringement of it by the respondent. An interlocutory injunction may be granted at any time after the commencement of the relevant proceedings in order to maintain the status quo.
I note that the editors of Osborn’s Concise Law Dictionary draw no significant distinction between an interim and/or interlocutory injunction.
In American Cyanamid v EthiconLimited (1975) AC 396, Lord Diplock, after observing at page 405 that “the grant of an interlocutory injunction is a remedy that is both temporary and discretionary”, turned to consider the principles which are applicable in the grant of such an injunction. His Honour said (at page 406):
The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff’s need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not adequately be compensated under the plaintiff’s undertaking in damages if the uncertainty was resolved in the defendant’s favour at the trial. The Court must weigh one need against the other and determine where the “balance of convenience” lies.
His Honour also said:
It is no part of the Court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately end, nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial.
The principles enunciated by Lord Diplock in American Cyanamid v EthiconLimited have been applied and refined over the years. It cannot now be disputed that the proper approach, in considering whether an interlocutory injunction should be granted, is to firstly inquire whether there is a serious question to be tried, and then to determine the matter on the balance of convenience (see, for example, Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 46 ALR 398; Epitoma Pty Ltd v Australasian Meat Industry Employees Union (No. 2) (1984) 54 ALR 730 and Yunghanns v Yunghanns (1999) FLC 92-386).
The requirement for an undertaking as to damages was an important component or consideration in or when considering the grant of an interlocutory injunction. According to Spry’s Equitable Remedies (4th edition) at page 473, “the purpose of requiring an undertaking is simply to enable the Court, should it think that the justice of the case requires it, to recompense a person who has been temporarily enjoined and, as it subsequently proves, enjoined contrary to his rights as finally ascertained, for the damage that he has meanwhile suffered”.
The common law position appears to be that the Court has a discretion not to enforce an undertaking as to damages. This is so because the undertaking is given to the Court, and not to the other party (see Blue Seas Investments Pty Ltd v Mitchell & McGillivary (1999) FLC 92-856 at 86,127).
An undertaking as to damages is not required for a grant of an interim injunction under section 46PP of the HREOC Act. Section 46PP(5) provides that the Court cannot, as a condition of granting the interim injunction, require a person to give an undertaking as to damages. In my view, the inclusion of this provision compells the Court to be particularly cautious when considering whether or not to grant the interim injunction sought. That is so because, if it is subsequently proved that a person was enjoined contrary to his or her rights, then no recompense for the damage that he or she may have suffered in the meantime may be available.
In my opinion, the use of the word “maintain” in section 46PP(1) emphasises the temporary nature of the interim injunction referred to in the section and imports a requirement (at least in so far as section 46PP(1)(b) is concerned) that a pre-existing “right” of a complainant, respondent or other affected person must have been adversely affected or, alternatively, is likely to be adversely affected in the foreseeable future. The “rights” of the complainant, respondent or other affected person referred to in section 46PP(1)(b) must, in my view, be both continuing and substantive.
Section 46PP is, of course, contained within the HREOC Act. “Rights” are not defined in section 3 of the HREOC Act. “Human Rights”, however, are defined in section 3(1) to mean the rights and freedoms recognised in the International Covenant of Civil and Political Rights, declared by the Declaration of the Rights of the Child, the Declaration of the Rights of Mentally Retarded Persons and the Declaration of the Rights of Disabled Persons, or recognised or declared by any relevant international instrument. The definition of “human rights” is further explained in section 3(4) of the HREOC Act.
Whilst is may well be the case that the rules of procedural fairness grant to the applicant a “right” to receive a copy of the Strauss Report (and I make no finding in that regard), such a “right” is very different from the rights that are envisaged in section 46PP(1)(b) and their maintenance[1].
[1] See the discussion in “Judicial Review of Administrative Action” (2nd edition) by Aronson & Dyer at pp 654 and 659-61
In any event, the “rights” which the applicant seeks to “maintain” in the present application are less than clear. The contents of paragraphs 60 to 62 of the applicant’s affidavit do not particularise those of the applicant’s rights which are said to be infringed — although there is reference in paragraph 61 to the applicant’s “right to access to justice”. In so far as that assertion is concerned, it is clear that the respondent’s refusal to provide the applicant with the Strauss Report has not impeded the applicant’s right to access to justice. The applicant is pursuing remedies that are available to him under the HREOC Act and by way of the VCAT application founded on the freedom of information legislation. There may well be other avenues available to the applicant to seek legal redress as a result of the respondent’s actions.
In reality, and given that the applicant did not pursue before me the order sought in paragraph 5 of his application, it is difficult to see what “rights” the applicant seeks to maintain. At the core of his case is the submission that he has a “right” to be provided with the Strauss Report (and related documents). This is said to be because the decision to require him to take sick leave was clearly based on matters contained in the Strauss Report, and because such a decision seriously affects his financial position, his reputation and his position at Glen Waverley Secondary College (and within the Department generally). But such a right, if it exists, may be more accurately described as a concomitant to the broader duty of disclosure generally recognised under the rules of procedural fairness or natural justice. The duty of disclosure is discussed in Judicial Review of Administrative Action (2nd edition) by Aronson & Dyer as follows (see page 413ff):
The duty of disclosure, like the requirement to give adequate notice, is of central importance…To receive evidence from one party behind the back of the other, or to act on undisclosed documentary material or representations, not only effectively deprives a person of a hearing, but also reduces accountability, acceptability and informed decision making.
But the duty of disclosure is not absolute:
Despite its importance, the duty of disclosure is neither absolute nor un-yielding, and must accommodate the special features of the administrative process. In courts of law, non-disclosure strikes “at the very root of the judicial process”. A Judge decides a case on the material presented to her or him by the parties, in the presence of the parties, and there is little scope for supplementing the evidence apart from the doctrine of judicial notice. The decision may be the best on the evidence but not necessarily the best informed. Administrative decision making differs in important respects. Decisions, to a greater or lesser extent, must be both accurate and reflect wider interests than those of the participants in the hearing. To this end there will be some compulsion on administrative decision-makers to inform themselves fully and to use their expertise and experience in resolving the problem at hand. The extent to which policy, expertise and independent inquiry are integral to the decision-making process will inevitably vary according to the subject matter for decision or investigation. The ability of administrators to inform themselves and to apply their expertise and accumulated experience, and the expectation that they will do so makes the duty of disclosure sometimes difficult to define, and to observe[2].
[2] Judicial Review of Administrative Action (2nd Edition) by Aronson & Dyer at page 413
Bearing in mind that the applicant’s proceedings before HREOC remain extant, and having regard to the matters discussed above, I conclude that the orders sought by the applicant are not necessary to ensure the effective exercise of HREOC’s powers. Those powers are broad, and are set out in section 13 of the HREOC Act. Further, HREOC also has the powers set out in section 21 of the HREOC Act — which enable it to require the production of relevant documents. Clearly, the applicant has the “right” to apply to HREOC for appropriate orders designed to compel the respondent to disclose the Strauss Report. Irrespective of other considerations in this matter, it is my view that any order that this Court may make requiring the production of the report may effectively pre-empt or otherwise interfere with HREOC’s powers and functions[3].
[3] See Rainsford v Group 4 Correctional Services (2002) FMCA 36 at paragraph 39
Further, I conclude that the orders sought by the applicant in paragraphs 1 and 2 of his application cannot be properly categorised as interim injunctions. Nor, in my view, do they “maintain” any relevant “rights” of the applicant. The orders (if they were to be granted) do no more than operate to compel the respondent to perform a single, finite act (namely the production of the relevant documents). If in the course of the HREOC proceedings — or in other proceedings — it were to be subsequently decided that the relevant documents should not have been produced, then it is difficult to see how the respondent could be adequately compensated (as it were) for what may amount to a violation of its own “rights”. Section 46PP(5), of course, precludes the Court from requiring the applicant to give an undertaking as to damages as a condition of granting the relief sought.
Put another way, the purpose of the order sought is not to “maintain” any existing “right”, but to compel production of documents which may assist the applicant in the conduct of proceedings in which other “rights” are asserted, and other claims made. In my view, there is merit in the respondent’s submission to the effect that the applicant is simply seeking to obtain preliminary discovery of documents. Seen in that light, any “rights” asserted by the applicant in the present proceedings (being the proceedings in this Court) are procedural and not substantive. In my view, they are not within the meaning and contemplation of the expression “rights” in s. 46PP(1)(b).
I do not accept that the inability of the applicant to obtain a copy of the Strauss Report and supplementary documents either impairs his ability to obtain considered legal advice or otherwise interferes with his access to justice. The reality is that the applicant appears to have a strong case — on the basis of the psychological and medical reports that he has obtained — to submit that the respondent’s actions were unwarranted or misconceived. In my view, the respondent’s refusal to disclose the documents sought places it at risk of becoming the subject of serious adverse comment in the HREOC proceedings or in another forum. The respondent will eventually have to justify why it should not be compelled to produce the report upon which is has relied (at least in part) to so profoundly affect the applicant’s reputation, financial position and professional standing.
In all the circumstances, I conclude that the application is misconceived and must be dismissed. To the extent that it may be necessary to do so, I also direct that the subpoenas be set aside.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Walters FM
Associate:
Date: 1 November 2002
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