James, Dr B. v Secretary, Department of Primary Industry & Energy

[1994] FCA 718

JUDGMENT No. ............ . 7 18 _/2-..

IN THE FEDERAL COURT OF AUSTRALIA	1
NEW SOUTH WALES DISTRICT REGISTRY	) No. NG 631 of 1994
GENERAL DIVISION	)

BETWEEN:

DR BART JAMBS

Applicant

AND :

SECRETARY, DEPARTBENT OF PRIMARY
INDUSTRY AND ENERGY

Respondent

CORAU:	SACKVILLE J.
PLACE: SYDNEY	I1 OCT 1994
DATE: 30 SEPTEWBER 1994

AUSTRALIA PRINCIPAL REOISTRV

HIS HONOUR: In this matter, relief is sought by the applicant, Dr James, against The Secretary, Department of Primary Industries and Energy. That rellef raises certain matters concerning, as I understand it, a direction that the applicant be transferred in terms of his place of employment.

In the course of preliminary proceedings leading up to this hearing, orders were made by Lindgren J. Those orders related to certain documents that are annexed to an affidavit. That affidavit is one sworn by Claire Howell on 23 September 1994. The documents are those bearing numbers 2.1 to 5.4, as annexed to the affidavit.

dlsclose to the applicant the documents annexed to the	affidavit of Claire Howell, sworn 23 September 1994, or the
c o n t e n t s o f t h o s e documents, t h e n counsel and s o l i c i t o r f o r
t h e a p p l i c a n t s h a l l be a t liberty t o do s o . To t h a t
e x t e n t , o r d e r 3 o f t h e o rder s made on 16 September 1994 a r e
v a r i e d , b u t the f o l l o w i n g s h a l l app ly :
1 . No c o p y o f the letters o r a n y par t o f them s h a l l be

The orders made by Llndgren J were as follows:

Until further order, if counsel, in preparing the applicant's case for hearing, finds it necessary to

provided t o the a p p l i c a n t ;

2 . Order t h a t the a p p l i c a n t s h a l l n o t d i r e c t l y or

indirectly d l s c l o s e t o Kevin K e l l y o r a n y o t h e r person

the n a t u r e o r c o n t e n t	o f t h o s e f our	documents,	o r a n y
o f them.

T h i s o r d e r s h a l l n o t preven t the a p p l i c a n t from d i s c u s s i n g

the documents o r thelr c o n t e n t w i t h h i s s o l i c i t o r s o r

counse l	f o r	the	prepara t ion	o r conduct	o f	the	h e a r i n g
tomorrow.

It has been foreshadowed today by Mr Pearce, counsel for the applicant, that he may have some questions of M r MacDonald, who was the decision maker, that would involve divulging the contents of some, at least, of the documents to which I have referred.

Mr Pearce has submitted that the court should be open while his

cross examination takes place.

Mr Johnson, on behalf of the respondent, by contrast, contends

that the public interest immunity that gave rlse to the orders

of Lindgren J should apply at the stage of the hearing. In his

submission, the court should be closed while ev~dence is given or submissions are made that might have the effect of revealing the contents of the documents.

Mr Johnson wishes to preserve his position as far as making a

submission on the conduct of the hearing is concerned. I have indicated that I do not regard this as simply a matter for the parties to resolve. There is an important principle of open justice that must be respected. I acknowledge that the Federal Court Act 1976 confers powers upon the court to close proceedings in appropriate clrcumstances: see ss.23, 50.

I have indicated that Mr Johnson's position should be protected, in the sense that he should be at liberty to make an application at the appropriate time. I am confident that I can rely upon Mr Pearce to indicate the point at which his cross examination there is a danger in his view that the contents of the documentation may be revealed. At that polnt, it wlll be open to Mr Johnson to make an application.

Mr Johnson has also ralsed the question of the position of the applicant durlng cross examination by him - that is, by Mr Johnson. Mr Johnson has indicated that although he thinks it unlikely that he will raise issues that will require reference to the documentation, it is possible that the applicant, in the course of cross examination, might, in endeavouring truthfully to answer questions, refer to that documentation.

upon the applicant in the course of giving his evidence that has	It seems to me that the terms of the order impose an obligation
a potential for unfairness. If the applicant is asked questions,
I do not think it reasonable that he should be required to assess
in the course of determining what answer he gives whether there would be a breach of the orders made by Lindgren J. Accordingly, I propose to modify those orders to the following extent. I qualify the order made by Lindgren J on 29 September 1994 to provide that the applicant is not prevented from disclosing the contents of the documentation to which I have previously referred if he does so in the course of truthfully answering questions put to him in examination in chief or cross examination.
I recognise that this may create a situation where Mr Johnson finds that there is a danger of the contents of the documents being revealed without: prior notice. However, I think this can be dealt with by an appllcatlon being made by Mr Johnson at the time when thls appears likely to occur or at the outset of an answer where some reference is made to the documentation. I make it clear that I will allow Mr Johnson to make an appropriate application at that time and to interrupt, if necessary, the giving of evidence by the applicant for this purpose.

I certify that this and the preceding 4 pages are a true copy of the Reasons for Judgment of the Honourable Justice

Sackville. / n

Dated:  5 October, 1994

Heard:	30 September 1994
Place:	Sydney
Decision:	30 Septemberr 1994
Appearances:	Mr Pearce of counsel instructed by Geoffrey Edwards & CO appeared for the applicant
Mr Johnson of counsel instructed by Australian Government Solicitor appeared for the respondent