Kaplan v State of Victoria
[2022] FCA 590
•20 May 2022
FEDERAL COURT OF AUSTRALIA
Kaplan v State of Victoria [2022] FCA 590
File number(s): VID 391 of 2021 Judgment of: MORTIMER J Date of judgment: 20 May 2022 Catchwords: PRACTICE AND PROCEDURE – interlocutory application for suppression of identities of 34 individuals – where individuals are non-parties and some are minors – interests of children – effect of suppression orders on trial – requirements of open justice – interim suppression orders – application dismissed Legislation: Fair Work Act 2009 (Cth)
Family Law Act 1975 (Cth)
Federal Court of Australia Act 1976 (Cth) ss 37AF(1), 37AG(1), 37M
National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth)
Racial Discrimination Act 1975 (Cth) ss 9, 18C
Family Violence Protection Act 2008 (Vic)Cases cited: AA v BB [2013] VSC 120; 296 ALR 353
AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6; 364 ALR 202
AX v Stern [2008] VSC 400
BJP19 (as Litigation Guardian for BJQ19) v Office of the Australian Information Commissioner [2019] FCA 618
D1 v P1 [2012] NSWCA 314
Ferguson v Tasmanian Cricket Association (trading as Cricket Tasmania) [2021] FCA 1507
Ferguson v Tasmanian Cricket Association (trading as Cricket Tasmania) (No 2) [2022] FCA 125
Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651
Huikeshoven v Secretary, Department of Education, Skills and Employment [2021] FCA 1359
Jenkings v Northern Territory of Australia (No 4) [2021] FCA 839
John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Roberts-Smith v Fairfax Media Publications Pty Limited (No 26) [2022] FCA 46TTT & JJJ v State of Victoria [2013] VSC 162
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 94 Date of last submission/s: 20 April 2022 Date of hearing: Determined on the papers Counsel for the Applicants: Mr Adam Butt Solicitor for the Applicants: Cornwalls Counsel for the Respondents: Mr Chris Young QC Solicitor for the Respondents: MinterEllison ORDERS
VID 391 of 2021 BETWEEN: JOEL KAPLAN
First Applicant
JANET ABADEE AS REPRESENTATIVE OF MATT KAPLAN, A MINOR
Second Applicant
SARIT COHEN AS REPRESENTATIVE OF GUY COHEN, A MINOR (and others named in the Schedule)
Third Applicant
AND: STATE OF VICTORIA
First Respondent
RICHARD MINAK
Second Respondent
PAUL VARNEY
Third Respondent
DEMI FLESSA
Fourth Respondent
ORDER MADE BY:
MORTIMER J
DATE OF ORDER:
20 MAY 2022
THE COURT ORDERS THAT:
1.The first respondent’s interlocutory application dated 31 March 2022, as amended, be dismissed.
2.Order 4 of the orders of Justice Mortimer dated 5 April 2022 be vacated.
3.Order 1 of the orders of Judicial Registrar Legge dated 19 April 2022 be vacated.
4.There be no order as to the costs of the interlocutory application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MORTIMER J:
BACKGROUND
The first respondent in this proceeding (the State of Victoria) filed an interlocutory application dated 31 March 2022 (the suppression application), relating to the suppression of the identities of 34 individuals, whose names appear in the applicants’ pleadings, in the outlines of evidence filed, and are likely to appear in the evidence at trial. Subsequent to a case management hearing on 5 April 2022 to which I refer below, the State filed an amended suppression application: see [13] below. I use the term ‘suppression application’ to cover the amended application as well. Given its nature, this is only put as the State’s application, rather than an application by all respondents.
The suppression application seeks in relevant part an order, being proposed order 1, that:
Pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth) (the Act), and on the grounds referred to in s 37AG(1)(a) and (c) of the Act, there is to be no disclosure, other than by order 3, by publication or otherwise, of information that identifies, or tends to identify, the 34 persons (Witnesses 7-40) listed in the confidential Annexure B to these Orders (Confidential Annexure B).
(Original emphasis.)
I note that in this proposed order, the individuals are described as “witnesses”; however, with one exception, none of them are presently proposed to be called as witnesses by either party.
The State proposes an order allowing disclosure of the identities of these people to judges, court staff and transcript service providers, the legal representatives of the parties, witnesses and any judges and court staff involved in any appeal.
Confidential annexure B (Annexure B) to the suppression application sets out a list of the names of the 34 individuals.
An affidavit of Ms Caitlin Ible dated 31 March 2022 was read in support of the suppression application. Relevantly, Ms Ible deposed:
(a)she was “aware that there has been media coverage of the allegations that are the subject of this proceeding and also the proceeding”, and annexed several media reports to her affidavit;
(b)the 34 named individuals are former and current Brighton Secondary College (BSC) students, who the applicants allege engaged in, amongst other things, verbal and physical assaults, taunts, criminal conduct, Nazi salutes, racist assaults, battery and bullying of the applicants;
(c)each was a minor at the time of the alleged conduct; and
(d)15 of the 34 individuals were still minors (I infer, as at the time she affirmed her affidavit).
Ms Ible deposed that none of the 34 individuals “will be a witness in the proceeding”. This was confirmed by senior counsel for the State at the hearing on 5 April 2022. However, in its subsequent written submissions, the State identified one of the 34 individuals who was being called as a witness by the applicants. This person is not a witness whose identity the applicants have applied to have suppressed.
On the morning of 5 April 2022, prior to the case management hearing in the proceeding, the applicants’ legal representatives sent by email to Chambers:
(a)submissions opposing the suppression application; and
(b)an accompanying affidavit of Mr Adrian Lo Monaco dated 5 April 2022 (which was subsequently filed with the Court’s Registry later that morning).
At the hearing, I granted the applicants leave to uplift the submissions and accompanying affidavit filed that morning, in order for those documents to be amended and re-filed. Those documents were subsequently uplifted from the Court record and later re-filed with amendments.
At the case management hearing, there was some discussion of the parties’ positions on the suppression application, but the parties were given an opportunity to file written submissions and any further affidavit material. An order was made – with the parties’ agreement – that the suppression application would be determined on the papers. An interim order to the following effect was also made:
Pending the hearing and determination of the first respondent’s interlocutory application dated 31 March 2022, the redacted version of the Statement of Claim attached to that interlocutory application is the only version of the Statement of Claim to be made available for inspection by any third party under the Federal Court Rules 2011 (Cth).
In accordance with those orders dated 5 April 2022, on 12 April 2022 the State filed written submissions, but no further affidavit material.
The applicants filed written submissions and an affidavit of Mr Monaco dated 19 April 2022, being amended versions of the documents sent to Chambers on the morning of 5 April 2022.
At the case management hearing, the parties indicated that they were not aware of any other documents containing the names of the 34 individuals. However, subsequently it appears that solicitors for the State discovered or realised that the names of some of those individuals were also included in discovery orders made by Judicial Registrar Legge on 23 December 2021. The State subsequently sought an order mirroring the interim order extracted at [10], above, with respect to the disclosure of those names in the orders of Judicial Registrar Legge on 23 December 2022. Orders to this effect were made by Judicial Registrar Legge on 19 April 2022.
RESOLUTION
I have considered all of the material filed by the parties on the suppression application. In my opinion, there is presently insufficient justification to make suppression orders of the kind sought. I also consider there would be adverse consequences for the conduct of the trial, of a kind which render it in the interests of the administration of justice that there be no suppression orders.
The State relies on the terms of s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth), and contends the suppression orders are “necessary to prevent prejudice to the proper administration of justice”. Its application falls to be determined on that basis.
Applicable principles
I have expressed my approach to suppression orders, in terms of principle, in other decisions. See in particular Jenkings v Northern Territory of Australia (No 4) [2021] FCA 839 at [22]-[28], and the cases there referred to. A matter often emphasised, which should be emphasised again, is that the Court must form the view the orders are “necessary” to (relevantly) prevent prejudice to the administration of justice, the word “necessary” indicating a high threshold: Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 at [30].
In Ferguson v Tasmanian Cricket Association (trading as Cricket Tasmania) [2021] FCA 1507 at [5], I said this about the principle of open justice:
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] [in Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836; 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.
That statement was made in the context of an application for access to documents under the Court’s Rules. That is one of the likely relevant contexts here. Although the suppression order sought would affect the naming or indirect identification of the 34 individuals during the trial and in the Court’s reasons for judgment, it would also preclude access to any documents revealing, or tending to reveal, the identities of the 34 individuals, even once evidence was tendered at trial. That would include third party access requests.
This is not a situation where the 34 individuals are parties. Therefore, there are no considerations around whether the administration of justice is prejudiced because absent a suppression order, a person would not be confident to approach the Court and commence or continue a proceeding: cf the cases referred to by Jackson J in Huikeshoven v Secretary, Department of Education, Skills and Employment [2021] FCA 1359.
In Huikeshoven, Jackson J also emphasised (at [26]) the need for cogent evidence establishing a justification for the orders departing from the principle of open justice:
Cogent evidence is needed and a belief that the orders are necessary will not be sufficient: see Lew v Priester(No 2) [2012] VSC 153; (2012) 35 VR 216 at [14] (Davies J). That is not a matter of mere form but is for the purpose of ensuring that suppression orders are kept for exceptional cases. It is therefore necessary for the court to carefully scrutinise the justification for the proposed orders: PQR v Secretary, Department of Justice and Regulation (No 1) [2017] VSC 513; (2017) 53 VR 45 at [54].
I respectfully agree.
The authorities where such orders have been made, such as AA v BB [2013] VSC 120; 296 ALR 353 and AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6; 364 ALR 202, involved specific and acute circumstances. In the former, orders were made suppressing the identities of a person convicted of contraventions of the Family Violence Protection Act 2008 (Vic), his former spouse, and their child. The Court also held that unrestricted publication in the proceeding before the Supreme Court would lead to identification of the parents and the child, contrary to the provisions and policy of the Family Law Act 1975 (Cth). In the latter, Nettle J found such orders were necessary to protect the safety of the two children of a person who had a previous role as a police informant, on the basis of evidence his Honour described in the following way (at [17]):
I agree with respect with the Court of Appeal that any assessment of the risk to HI and JK involves a degree of conjecture. In this case, however, it is a degree of conjecture that is informed by the unchallenged opinion evidence of very senior and appropriately experienced police officers that the current level of risk to the safety of HI and JK is "acute" and will further increase with publication of EF's name and image upon expiration of current non-publication orders on 1 March 2019.
Another example is D1 v P1 [2012] NSWCA 314, where the primary judge’s suppression orders were confirmed on appeal. There was extensive evidence about the risk that a single individual might engage in self-harm if the identity of the defendants in a civil proceeding were to be disclosed and/or if the subject matter of the proceedings were to be further published in the public domain. The proceedings related to alleged sexual assaults by a teacher of several pupils at a school, where the suppression order applicant was not one of the victims. The Court of Appeal imposed time limits on the orders, which would require fresh consideration of the continuing necessity for the orders at a later date.
Each case turns on its facts, as I have observed, but these three cases illustrate the specific kinds of situations where a Court might find the threshold of “necessary” to be met, together with the kind of evidence required.
Finally, although it is an obvious point, contravention of a suppression order is capable of constituting a contempt of court. That fact illustrates the exceptional nature of suppression orders, and also underlines the need for them to be workable in the context of a trial.
The issues for trial in this proceeding
In order to assess how, if at all, the interests of the administration of justice might be prejudiced if the 34 individuals’ identities remain public, it is necessary to describe the contested issues between the parties, at least insofar as they bear on this application.
This is a trial very much based on factual allegations. The applicants’ statement of claim makes numerous and at some points very detailed factual allegations about conduct involving the 34 individuals, and other individuals including the second, third and fourth respondents, who are respectively the then principal and two teachers at BSC. The conduct is summarised in the applicants’ concise statement filed in the proceeding, and it is appropriate to reproduce parts of the concise statement which deal with the factual allegations that may involve the 34 individuals:
At [5]:
Nazi Swastikas Across Period: During 2013-2020, at least multiple hundreds of Swastikas were manifest at the School across its property. The Swastikas were often not removed, or were removed unreasonably slowly. Students regularly requested such removal, including to the principal himself. Certain acts of staff precipitated the Swastikas including the principal’s speeches above, and the negligent teaching / discipline by staff in relation to Maus. Failing to remove Swastikas violated ss 3(3), 9(1) and 18C of the Act (and the School’s duty of care). As to s3(3)/9(1), the acts included omissions including: failures to act upon removal requests; staff failing to remove Swastikas of their own volition; failing to punish or investigate wrongdoers; failing to educate as to offensiveness (cf instructions to avoid LGBTQI+ hate speech by written and oral messages/instruction). All the Applicants were harmed by the breaches. The acts involved a distinction or preference based on race/ethnic origin with the purpose or effect of impairing the Applicants’ human rights. Other minorities and students received differential treatment (cf e.g. SOC 332-343, 189, 344). The failure to remove Swastikas was done by reference to race, Swastikas being a Nazi symbol, a group that sought to annihilate all Jews, murdering 6 million. Section 9 concerns human dignity. As to s18C, tolerating Swastikas on School property imputed that Nazi symbolism was acceptable or ‘normal’. The presence of Swastikas in large numbers was reasonably likely to offend, insult, humiliate or intimidate Jewish students at the School, or vulnerable sub-group. The failure to remove the Swastikas had the requisite connection to race/ethnic origin (s18C(1)(b)). There was no intrinsic quality to permitting the public display of anti-Semitic hate material. Regarding the School’s omissions in relation to general racist bullying, this is dealt with next.
(Original emphasis, footnotes omitted.)
At [6]:
Failure to action anti-Jewish/Israeli complaints/conduct: The SOC pleads a plethora of (1) complaints, and (2) incidents, of which staff were aware, involving all Applicants suffering anti-Jewish and anti-Israeli bullying/harassment and conduct at School, comprising activities of both staff and students which breached ss3(3), 9(1) and 18C of the Act, and breached the School’s policies (which existed from at least 2017), which were not actioned by staff adequately or at all. This ties in with the School’s negligence. The failures were a result of anti-Semitic attitudes and apathy that flowed from the top down, which were normalised across the period. The School’s failures to action complaints and condoning, without adequate investigation, education or punishment, racist acts of a verbal, physical and graffiti nature, by students and staff, comprised distinctions and preferences in breach of the Applicants’ s9(1) and (3(3)) rights – distinctions based on race/ethnic and national origin, disregarding usual standards of discipline, education, and impartiality (cf bullying policies, torts, human rights), and preferences in respect of other students and minorities. The breaches impaired the boys’ rights, and for 4/5 boys in essence eventually nullified them, as they could no longer tolerate staying at the School. Further, staff omissions to act in the face of serious racially offensive acts also violated ss18C and 3(3).
(Original emphasis, footnotes omitted.)
At [7]:
Varney and Flessa – Failure to Protect: A microcosm of the violations just referred to includes both Ms Flessa and Mr Varney’s non-protection of Applicants (SOC, 181-2, 193, 239). During 2018, Guy Cohen reported a Swastika to Mr Varney who never removed it. Similarly, Matt Kaplan received a “Heil Hitler!” in Humanities in front of Ms Flessa, who simply ignored the issue. Likewise, during Guy’s Year 9 (2019), a student yelled “you fucking Jew” in the locker area directly in front of Ms Flessa, who walked by, said “Shhh,” and never reported the student. These omissions breached ss3(3), 9(1) of the Act, disregarding the School’s anti-bullying policies, and comprising distinctions or preferences based on national or ethnic origin with the purpose or effect of impairing the students’ human rights. In addition, these omissions constituted offensive behaviour based on race in breach of s18C.
(Original emphasis, footnotes omitted.)
There are several other categories of factual allegations, directed at the three individual respondents, and which are not relevant to the suppression application.
The applicants’ causes of action are based on contraventions of the Racial Discrimination Act 1975 (Cth), and negligence.
So far as I can see, the State’s defence specifically admits only a few instances of the conduct alleged: see for example [76(f)] of the defence:
following the investigation, the student named in paragraph 76 of the SOC was identified as the author of the email and admitted to making an inappropriate reference to Joel’s background and/or faith.
There are other instances where the State’s pleadings in effect do not admit the applicants’ factual allegations. For example, at [108]:
As to paragraph 108, they:
(a) say that in or around June 2017, Matt complained to his Student Manager Mr Nathan Hutchins and/or Ms Shae Hower that the student named in paragraph 108 of the SOC had yelled out ‘Heil Hitler’ in the school yard;
(b) say further that Mr Hutchins and Ms Hower investigated the complaint;
(c) say further that Ms Hower spoke to the student named in paragraph 108 of the SOC who denied the comments were made to Matt and were made in the context of a conversation about Nazi Germany;
(d) say further that Ms Hower spoke to the other students involved who confirmed the account of the student named in paragraph 108 of the SOC;
(e) say further that Ms Hower warned the student named in paragraph 108 of the SOC about the language and that any further comments of this kind would face consequences; and
(f) otherwise do not admit as they do not know.
There are other responses from the State where some of the alleged conduct is admitted, but is given a specific context. For example, [147]:
As to paragraph 147, they:
(a) say that on 25 July 2017, Ms Bronwyn Hart emailed Mr Chan regarding an incident that a PE teacher, Ms Lana Goldstone observed in PE;
(b) say further that Ms Goldstone indicated that one of the girls in the class indicated that Joel bullied another child in the class, the student named in paragraph 147 of the SOC;
(c) say further that Ms Goldstone also reported that Joel attempted to trip up the student named in paragraph 147 of the SOC in class and the student named in paragraph 147 of the SOC responded by calling Joel “a Jewish shit”;
(d) say further that Ms Goldstone informed both the student named in paragraph 147 of the SOC and Liam that it was not appropriate to trip someone, provoke them or make comments about someone’s race, gender or religion and that the matter would be referred to the Student Managers; and
(e) otherwise denies the allegations contained therein.
(Original emphasis.)
In relation to particular allegations against individual students (that is, most if not all of the 34 individuals the subject of this application), in [42A] of its defence all respondents also plead:
They object to pleading to each of the allegations in paragraphs 43-51 as the student named in paragraph 43 of the SOC is not a party to the proceeding.
It is this pleading which is brought into the State’s submissions on the suppression application, based on what it contends procedural fairness requires.
In the respondents’ concise statement at [1], all respondents (including the State) make some more general admissions in relation to some of the alleged conduct:
The respondents accept there were some acts of intolerance by students at Brighton Secondary College in 2013-2020. Those acts included some acts of antisemitism, but also included acts concerning physical appearance, sexual orientation and other attributes. To the best of the respondents’ knowledge, the antisemitic acts were small in number and done by a small number of students. None of those acts was done by the respondents. Each act brought to the attention of the respondents was investigated and addressed as appropriate in all the circumstances.
It is quite proper for the State to make a general statement of this sort, in a concise statement, being a document intended to assist the Court, the parties and the public to understand the core issues between the parties and the nature of the proceeding. However, read against the pleadings it is clear there may need to be careful delineation between each alleged incident, for the applicants’ causes of action to be assessed and determined.
On the swastika allegations, the respondents’ concise statement says (at [9]-[13]):
The respondents accept there was graffiti at the school, including swastikas, from time to time. Upon becoming aware of it, steps were taken by the respondents to have it removed. The respondents do not accept the applicants’ characterisation of the number of alleged swastikas.
The applicants' concise statement (CS), but not the applicants' statement of claim (SOC), alleges the respondents “tolerated” or “permitted” the swastikas. That is wholly rejected. There is no basis in fact for the allegation and none is properly alleged.
The CS and the SOC allege acts of the respondents “precipitated” or “caused” the swastikas. Two acts are identified. The principal’s March 2019 speech and “negligent teaching/discipline by staff in relation to Maus.” In neither case have the applicants identified the connection between an alleged act and the swastikas. The allegations are wholly rejected.
As to s 9(1) of the RDA, the conduct-based limb cannot be made out. Steps were taken to remove or cover swastikas. Steps were taken to investigate who might be responsible for drawing them. Steps were taken to educate students about antisemitism. Any perceived delays in removing swastikas had no connection with national or ethnic origin.
As to s 18C of the RDA, the respondents did not “tolerate” the swastikas or fail to remove them. Any perceived delays in removing swastikas was not because of national or ethnic origin.
(Original emphasis.)
In terms of the failure to protect the applicants from allegedly racially discriminatory conduct, the respondents’ concise statement contends (at [14]-[18]):
The respondents accept some complaints were made about antisemitic conduct at the school. Each complaint was investigated and addressed as appropriate in all the circumstances.
The circumstances included: the school’s policies on behaviour, wellbeing and bullying; the application of those policies to conduct contravening them, including antisemitic conduct; the terms in which an act was brought to its attention, including whether there was sufficient information about the person who allegedly did the act; the school’s obligations to educate and support all students during their adolescence; restrictions on the school’s ability to share information about action taken under the policies; the range of educative actions taken about conduct contravening the policies; and the limitations on the school’s ability to change the behaviour of students.
Any perceived inadequacy in actioning a complaint had no connection with national or ethnic origin but was a result of decisions taken in good faith to balance all of the competing considerations set out in the preceding paragraph. The allegation of “antisemitic attitudes and apathy that flowed from the top down [and] which were normalised” is wholly rejected. The respondents rejected all forms of intolerance, including antisemitism.
For these reasons, the conduct-based limb of s 9(1) cannot be made out. Further, any inadequacy in actioning a complaint was not reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate ordinary, reasonable Jewish students at a Victorian government high school and was not done because of national or ethnic origin.
The CS, but not the SOC, alleges the respondents “condoned” racist acts. That is wholly rejected. There is no basis in fact for the allegation and none is properly alleged.
In my opinion, at this stage of the proceeding the Court should proceed on the basis that the various factual allegations about what individual students did, or said, or did not do, or did not say, are likely to be material to the resolution of the applicants’ case and the respondents’ defence.
Evidence to be given at trial
This dispute had a long history before this proceeding was commenced. There were not only investigations at BSC at the time of some of the alleged conduct, but also an investigation by an external contractor called ‘Worklogic’, commissioned by the State to investigate the applicants’ allegations.
The course of preparation for trial to this point, including discovery, as well as the overall context of the issues between the parties, makes it clear that not only will this proceeding involve large numbers of witnesses, and detailed witness evidence, it will also involve detailed documentary evidence. That documentary evidence will include contemporaneous records from BSC, and documents created or produced during the Worklogic investigation. I infer that the names of the 34 individuals subject to the suppression application will be found in many of these documents, and – if no suppression order is made – might be mentioned in the evidence of a number of witnesses. Evidence in this proceeding is to be given orally, with only witnesses outlines exchanged. A small exception to this related to what might be described as ‘institutional evidence’ from the State, where an affidavit was permitted. However, no such affidavits have been filed.
The applicants have filed 42 witness outlines. The State has filed 27 witness outlines. There are also 10 expert reports filed by the applicants and 1 expert report filed by the respondents.
Suffice to say there will be a considerable amount of evidence, a large proportion of it given orally.
The media articles in evidence
The media articles in evidence are from July 2020 (two articles), August 2020 (one article) and November 2021 (two articles). None of them name any of the 34 individuals. Nor do they name the applicants.
It is clear this proceeding has a number of features that are likely to create interest from sectors of the public, and members of the community more generally. It is therefore also likely to be the subject of some media reporting. How much may of course depend on what else is going on in the news cycle at any given time.
Publication of reports of proceedings by the media is an integral part of open justice: see for example my observations in Jenkings at [70] and [93]. Media reporting is one way in which the community can learn about proceedings. With livestream, remote hearings and direct publication of more material by courts themselves, it is far from the only way. Nevertheless, there is no question media reporting remains an important aspect of open justice.
If, by pointing to some minor media reports from some time ago, the State seeks to suggest that the fact of reports by the media about this proceeding justifies suppression of the identities of the 34 individuals, such a proposition must be rejected. Again, it may be that the State is simply highlighting the realities about the prospects of aspects of this proceeding being reported. So much may be accepted, but it does not make a suppression order of the kind sought “necessary”. As Besanko J stated in Roberts-Smith v Fairfax Media Publications Pty Limited (No 26) [2022] FCA 46 at [13] (Roberts-Smith (No 26)), media representatives themselves have a number of professional and ethical obligations. The Court is entitled to expect reporting will be responsible, fair and reasonable. The media articles in evidence provide no probative basis for any fears that the identities of the 34 individuals will be misused, or used sensationally and inappropriately, without cause, in any media reporting.
Rejection of the first approach taken by the State in its submissions
In its submissions on this application, the State sought to relegate almost to irrelevance the underlying factual allegations made by the applicants, in relation to allegedly discriminatory conduct by students at BSC. It contended (at [8]):
First, what matters for those allegations is what was done by the school at the time, in the light of the knowledge the school had at the time. The primary facts are (a) what was said by one or more of the applicants to one or more of the respondents by way of report; (b) what steps the respondent(s) took in response. None of that requires naming the BSC Students.
(Original emphasis.)
I accept this is the State’s case, but it will need to persuade the Court at trial that this is the correct approach. It is clear from the samples of the pleadings and the concise statement and response extracted above that the applicants may not agree. Further, this position does not entirely capture how the State has responded in its defence. The State has made some, but not many, factual admissions about the conduct. It has made a number of denials. That includes denials about whether complaints or reports were made at all.
At this point, whether suppression of the identities of the 34 current or former BSC students is necessary to avoid prejudice to the administration of justice cannot depend on the contention extracted at [51] above. It is correct that the acts of discrimination are alleged to be those of the respondents and not the BSC students. That does not necessarily render the conduct of the BSC students irrelevant, or of marginal significance to the resolution of the proceeding. It is certainly arguable that the nature and content of the conduct of the BSC students, as the Court might find it to have occurred (or not occurred), is capable of affecting the Court’s findings about whether or not there has been one or more contraventions of s 9(1) of the RDA, and whether or not any duty of care has been breached. It is not appropriate for the Court to say any more than that at this moment. The first point made by the State in substance requires the Court to accept an argument the State will ultimately put at trial, and that is not an appropriate way to make out the criterion in s 37AG(1)(a).
Procedural fairness and s 37AG(1)(a): rejection of the State’s argument
The second substantive point made by the State is (at [9] of its written submissions):
Second, even if the underlying facts about the allegations are relevant, where the allegations will not be put to the BSC Students, it compounds the denial of procedural fairness to the BSC Students for each of them to be named in public. This is particularly so where the allegation relates to the actions of a minor who the applicants claim engaged in racial vilification.
(Original emphasis.)
Despite this submission, and despite the pleading extracted at [36] above, the State has not made any application for the joinder of the BSC students as necessary or appropriate parties. As it accepts, no relief is sought against any BSC students, and the allegations of unlawful conduct are made against the respondents. Nor has the State sought to strike out those parts of the applicants’ pleadings on the basis of an absolute proposition that no such allegations can be made unless the BSC students are all parties to the proceeding. It is difficult to see how such an absolute proposition can be correct, especially in the circumstances such as these – where the conduct occurred at a State school, individual teaching employees are joined, and the State has accepted vicarious liability for any acts found to have contravened ss 9 and/or 18C of the RDA: see [3] of the respondents’ concise statement. That is why there is no doubt some force in the State’s first contention, even if I have rejected the absolute way in which it is put as a basis for a suppression order.
There are many circumstances which come before this Court, and other Courts, where serious and adverse factual allegations are made against an individual who is not named as a respondent to a proceeding. Criminal proceedings are a core example. In many criminal trials, the factual narrative and therefore the evidence may well involve conduct by persons other than the accused. It may be that the conduct is alleged to be unlawful. It may also be that the conduct is embarrassing, shameful or otherwise likely to cause distress to those people. They may or may not be called as witnesses. If there is a particular justification (for example, if they are a victim of crime, or there is cogent evidence about their vulnerability), suppression may be granted. But it will not be granted as a matter of course simply because the factual narrative of a proceeding involves revealing the identities of such people, and adverse allegations about their conduct.
Adverse action proceedings under the Fair Work Act 2009 (Cth) are an example within this Court’s jurisdiction. It is by no means always the case that individuals also employed by a respondent employer and whose conduct is alleged to have been part of the factual basis for adverse action taken against an applicant employee or former employee are joined as parties. How the employer and other parties defend the case against them is a forensic decision, which may or may not involve “defending” factual allegations against a non-party. As the State has done here, some factual allegations may be admitted – the admission of those allegations means that the conduct said to reflect adversely, perhaps highly adversely, on a non-party, is not defended at all, but is admitted by a party against whom relief is sought. Yet an admission by a party is not contended to constitute a denial of procedural fairness to the non-party concerned. That is because the procedural fairness obligation attaches to the conduct of the trial, primarily to the fairness of the trial to those who are the necessary and appropriate parties, in terms of the relief sought. Its content must be ascertained taking into account other principles at play in that trial such as the process of allegation, admission and denial which crystallises the issues in dispute between the parties, and the operation of open justice principles which are designed to enhance the ability of the public to be given a full picture of the circumstances in a proceeding. The State and other respondents did not deny any of the 34 individuals about whom they made admissions procedural fairness by making some admissions about their conduct, nor by not making denials. In the same way, non-suppression of the identities of the 34 individuals in those circumstances does not constitute a denial of procedural fairness. Any factual findings made by the Court about the conduct of these 34 individuals will be no more than findings made along the way to a determination of the allegations against the four named respondents. Some of those factual findings may be important, but they will not result in any relief affecting, or directed at, any of the 34 individuals.
While the fact whether a person whose identity is sought to be suppressed is a party, or a witness, or a third party, may be relevant to whether the criterion in s 37AG(1)(a) is made out, apprehensions of embarrassment or anxiety or fear about what statements may be made during a proceeding is unlikely, without cogent evidence directed to the circumstances of an individual, to justify departure from open justice. In Ferguson v Tasmanian Cricket Association (trading as Cricket Tasmania) (No 2) [2022] FCA 125, the Court refused to grant a suppression order to a person referred to in the originating application in the proceeding. In that case, the applicant for suppression was a person against whom allegations of sexual harassment were made and was, I infer, a party to the proceeding. That applicant gave evidence on affidavit about the effect disclosure of his identity would have. In refusing to grant a suppression order, the Court said at [15]:
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.
In Huikeshoven, Jackson J referred at [47] to the well-known observations of Kirby P in John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 at 142‑143:
It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms ... A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise, powerful litigants may come to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported.
(Citations omitted.)
At [48], Jackson J found:
In that regard it is significant in my view that s 37AG(1) only refers to undue distress or embarrassment in connection with a criminal proceeding involving an offence of a sexual nature: see s 37AG(1)(d). That is not to say that such distress or embarrassment cannot be relevant to satisfaction of one of the other grounds in s 37AG(1), but it does suggest that it will not be enough on its own, except in proceedings involving sex offences.
Therefore, even if there was specific evidence on this question (which there is not) it is clear that it is an insufficient justification for a suppression order that the 34 individuals may be embarrassed, or experience distress or anxiety because they are named as people alleged to have engaged in discriminatory conduct towards the applicants.
Protecting the interests of children
The State did not develop any submissions based on the protection of the interests of children as a matter which of itself is capable of justifying a suppression order. However, its reliance on the fact that the 34 individuals were at the time of the alleged conduct all minors, and that some remain minors, suggests this status might be seen as an independent justification for a suppression order.
In TTT & JJJ v State of Victoria [2013] VSC 162 at [21]-[24], Cavanough J reviewed the approach in the authorities to which his Honour had been directed about protecting the interests of children through pseudonym orders. TTT was a civil case, where the plaintiffs alleged that certain agencies of the State of Victoria, including the former Department of Human Services, negligently failed to protect the applicants from physical and psychological harm suffered by them as a consequence of family violence. Of course, the order sought by the State here goes beyond a pseudonym order.
Cavanough J noted at [21]:
The courts have always been alert to protect the interests of children whose affairs come before them, including, often, their interest in privacy. The general protection of children has also been a major concern of the legislature. Some statutory provisions explicitly protect the privacy of children involved in specified court or tribunal proceedings. Surprisingly, however, neither counsel nor I could find a previous case in which an applicant to this Court for a pseudonym order was a minor at the time of the application (as distinct from the time of the alleged injury).
(Footnotes omitted.)
His Honour then dealt with a number of other circumstances where suppression of the identity of a child was ordered because they were victims of crime; or suppression of the identity of a parent was ordered to protect a child (as to which, see the unusual circumstances in AX v Stern [2008] VSC 400). At [24], Cavanough J said:
I do not suggest that this Court should create a new, non-statutory category of automatic reporting restrictions in relation to child victims of crime or in relation to family violence or children generally. However it seems to me that the cases to which I have referred support the view that the tender age of the proposed plaintiffs in this case is a matter that could legitimately be weighed in the scales in their favour in determining whether or not to make the pseudonym orders sought.
(Footnotes omitted.)
The circumstances his Honour identified are far more specific than the current circumstances of the 34 individuals, none of whom themselves applied for an order of the kind sought, and about whose circumstances no evidence has been adduced. The absence of evidence about the position of the child concerned marks this case out from all of the existing authorities. It is difficult to see how a Court could find a suppression order “necessary” without any evidence about the children concerned, even (as I explain below) about their ages now and at the time of the alleged conduct.
Therefore, at a level of general proposition, it can be accepted that the fact that a person is a minor may be relevant to whether a suppression order relating to that person’s identity should be made, so as to avoid prejudice to the administration of justice. None of the authorities which are readily available deal with individuals who are only named in pleadings. While that absence of previous authority is far from determinative, what it illustrates is that asserted prejudice to the administration of justice generally focuses on prejudice to those who are centrally involved in a trial – the parties and their witnesses.
The status of minority, whether at the time of the alleged conduct, or continuing, is insufficient to render an order of the kind sought necessary to prevent prejudice to the interests of the administration of justice. Especially so in a proceeding which has at its factual centre the conduct of a large number of secondary school students, including adverse factual allegations by the respondents about the conduct of the applicants at various points in time.
The Court has no evidence at all about how old each of the 34 individuals is now, or what their circumstances are. Some people who are 16 or 17 are more mature and have better coping mechanisms under pressure than people who are 20, or 25. Others may still be very immature and vulnerable. The effects of their identities being known may vary considerably from person to person. That is also true of adults. There can be no generalisations when the Court is asked to depart from the open justice principle. This underscores the need for detailed evidence, particularised to the circumstances of the minor whose interests are sought to be protected, and evidence which also properly contextualises the nature and level of risk of further publication of their identity, if that is what is alleged to be prejudicial.
How a suppression order would affect the trial
This is a matter of some significance in my decision, because the administration of justice requires a trial that can be conducted fairly (including fairly insofar as the witnesses are concerned), in a way which best ensures the Court receives reliable evidence, and in accordance with the objectives in s 37M of the FCA Act. If suppression orders are likely to have an adverse effect on the conduct of the trial, the fairness of the process of examination and cross-examination of witnesses, or the understanding and presentation of the evidence, then those orders may not prevent prejudice to the administration of justice. Rather, they may have the opposite effect. That is, the content of the concept of the “administration of justice” is not singular, but includes factors which may pull in different directions. The Court must decide where the overall interests of justice lie, not only from the perspective of the applicant for suppression orders.
I do not accept the State’s contention that the orders it seeks “do not prevent the applicants running their case in whatever manner they see fit”. Rather, suppression of the identities of 34 individuals who were involved in the alleged underlying conduct will make the conduct of the trial impracticable.
This is not a situation like BJP19 (as Litigation Guardian for BJQ19) v Office of the Australian Information Commissioner [2019] FCA 618, which concerned the affording of a pseudonym to an applicant who was a minor. If there are appropriate justifications for such an order, as Kerr J found there were, then this Court regularly manages proceedings where an applicant is to be identified by a pseudonym.
The making of the proposed suppression order here would lead to a complex situation, where inadvertent breaches of the suppression order might be likely. All documents containing any names and tendered in evidence would have to be redacted. That is a task of some enormity. The State has not offered to pay all those costs. There is a costs capping order in place in the proceeding, to which the State consented. Perusal and redaction of all documents is a significant burden to impose on the parties at this stage, close to trial, where there are many other tasks to be completed.
It is likely that, with so many documents, of varying content and form because of varying sources, that identification and redaction of some names might be missed. Further, the State’s order seeks suppression of information identifying any of the 34 individuals, not just their name. That would complicate the task immensely.
Suppression is likely to make the evidence confusing to understand, perhaps not for the Court, but certainly for members of the public, who are entitled to be able to understand and follow the controversy before the Court. That is especially important in a proceeding which deals with matters of public interest as this one does.
Suppression would also make the task of witnesses giving oral evidence much more difficult. They would need to be given aide memoires to be able to refer to any of the 34 students, at any given time. Evidence might well move quickly from facts about one student to facts about another. This feature of the trial is likely also to apply to the applicants’ evidence, some of whom are also still minors. Whether minors or not, giving evidence is likely to be a stressful and anxious experience for most of the witnesses. In a trial with oral evidence, it is vital the Court receive the best and most reliable evidence possible, and that there are no more burdens placed on witnesses giving evidence than are necessary.
I accept that it is possible for a complex trial to be conducted with suppression of witness identities: see for example the conduct of the trial in proceedings NSD 1485 of 2018, NSD 1486 of 2018, and NSD 1487 of 2018, brought by Mr Ben Roberts-Smith against a number of media companies. However, the factors which would compel a Court to alter the usual way in which oral evidence is to be given, and impose additional complexities and burdens on witnesses in an already stressful situation, would need to be of significant order. In those proceedings, national security reasons have been relied upon: see, for example, Roberts-Smith (No 26) at order 1 and [6]-[7], referring to orders made pursuant to the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth).
I do not consider the imperatives in the present case to be of the same order. No doubt the BSC students subject to the factual allegations would prefer not to be named. Some of them are admitted by the State to have engaged in the alleged conduct, but many are not. Where there is no admission, it is the State’s forensic choice not to call them as witnesses.
Jones v Dunkel
The applicants made submissions about how the fact that none of the 34 students are being called as witnesses should be treated, and referred to Jones v Dunkel [1959] HCA 8; 101 CLR 298. The State contends the BSC students cannot be described as being in the respondents’ “camp”. The operation, or non-operation, of the principles in Jones v Dunkel is a matter for trial and does not affect the determination of the suppression application.
Conduct of the trial and judgment
I see no reason that the conduct of the trial should add much to the existing disclosures of the identity of the 34 students. The State has brought this application somewhat late in this proceeding. The statement of claim has been available for inspection for some time. There is no doubt the oral evidence will refer to some if not all of the 34 individuals. However, there is also no reason why counsel and witnesses should not refer to the individuals by their first name, so that the transcript refers only to first names and any reporting could do the same. On the present evidence there is no probative basis for the Court to apprehend the media would start reporting the full names of any of the 34 individuals, that not having occurred to this point, and the human focus of the proceeding being more on the applicants themselves, the individual respondents and (to a lesser extent) the parties’ other witnesses.
There is also no reason why the Court cannot, in its ultimate reasons for judgment, adopt conventions which describe the 34 individuals by their first names, or in some other shorthand way.
These matters can assist in ameliorating any embarrassment or distress caused by the naming of the 34 students in the statement of claim, and in any documents tendered in evidence. Taking such steps does not involve any compromise of open justice principles in the same way that the making of a suppression order does.
Existing suppression order
On 25 March 2022, on the applicants’ application and with the respondents’ consent, the Court made a suppression order covering the identities of six individuals who are proposed witnesses in the proceeding. No evidence was filed substantiating the basis for the suppression order. After questions from the Court, and after it was pointed out to counsel that the Court needed to be positively satisfied of a proper basis for suppression orders, counsel offered an explanation from the bar table. Senior counsel for the respondents did not object to this course.
The Court expressed its concern about the lack of evidence. The applicants’ counsel offered to file evidence, but senior counsel for the respondents pointed out that there was a significant timing problem. Despite being non-compliant with the Court’s orders, the applicants were refusing to provide the respondents with the witness outlines of these six witnesses unless and until suppression orders were made. Therefore, the respondents were willing to have the Court make orders so that they could have access to the six witness outlines without any further delays.
The justification provided orally by the applicants’ counsel was that the six individuals were anxious about giving evidence, and in the case of at least some of them, would not agree to give evidence if their identities were public. There was another asserted basis, which I rejected.
Senior counsel for the respondents indicated to the Court that another reason the respondents had consented was because the respondents had their own suppression application to make. I infer that was a reference to the present application. He informed the Court that the applicants were not at that point prepared to consent to the suppression order proposed by the respondents. As is apparent, the applicants have maintained that position.
Given the non-service of the witness outlines, the need to place the matter back on a compliant track to meet trial dates, and the respondents’ consent, together with the oral explanations given by counsel for the applicants, I determined it was appropriate to make suppression orders. However, I did make the following observation:
HER HONOUR: Well, another way, I was just thinking, Mr Young, and I will just say it out loud so that Mr Butt can respond too, another way to deal with it is that the orders are made until the trial, and then when the witness and the ..... pseudonym order, and then when the witness gives evidence, the witness can substantiate the .....
MR YOUNG: Yes. we’d certainly be content with that.
HER HONOUR: ..... that means no extra costs, but it means that the evidence is there, and if the order is to be continued, and there will be a proper evidentiary basis for it.
Order 5 of those orders provided that the suppression orders would apply “until further order”.
Having now reflected in greater depth about the circumstances of this proceeding, and the position that I consider is the correct one on the respondents’ suppression application, it seems to me that it is difficult to justify any continuation of the existing orders in favour of the applicants’ six proposed witnesses. Indeed, the applicants’ lengthy submissions opposing the State’s suppression application rather make out the case for a vacation of the 25 March 2022 suppression order, especially the emphasis on the principles of open justice and how they apply to this particular proceeding, the references to an absence of cogent evidence justifying the orders, and the strength of the word “necessary”. In any event, the orders as made, together with what was said at the case management hearing, reflect the Court’s intention to limit the operation of the orders because of an absence of evidence to support them.
The trial is now only approximately two weeks away. The parties’ resources will no doubt be fully consumed with trial preparation. I am mindful of the costs capping order, and the applicants’ history of non-compliance with several of the Court’s orders. The main objective is for the trial to commence as scheduled, and to run as scheduled. That is in the interests of all parties, of the numerous witnesses involved in this proceeding, and in the interests of the efficient management of the Court’s finite resources.
To that end, I do not propose to invite the parties to file any further submissions about the immediate rescission or vacation of the 25 March 2022 suppression order. However, the applicants are now on notice that the Court does not consider a continuation of that order past the commencement of the trial can be justified without proper evidence and argument, taking into account the Court’s ruling on the respondents’ suppression application. Rather, the kind of arrangements to which I have referred at [80]-[82] above could also be adopted for these six witnesses. I make no decision to that effect, but that is a course that presently seems to me might be fairer as between the parties. That course would give effect to the conclusions I have expressed in these reasons. Namely, that none of the individuals involved in the factual narrative giving rise to this proceeding should have their identities suppressed, and the principles of open justice should not be compromised, only because they are or were minors, or because they are anxious or embarrassed about what facts might emerge about them, or about their conduct in the past.
This matter should be addressed by the parties at the commencement of the trial.
CONCLUSION
For the reasons set out above, the respondents’ suppression application will be dismissed. The interim orders made pending the resolution of the suppression application will also be dismissed.
Given the applicants have had a similar application, the basis for which may not be consistent with my present ruling, and given the issue will need to be re-visited at trial, I do not consider it is appropriate to order costs on this application, nor to reserve the applicants’ costs. This was simply a matter arising in preparation for trial, which was largely dealt with at a case management hearing that was required for other purposes.
I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer. Associate:
Dated: 20 May 2022
SCHEDULE OF PARTIES
VID 391 of 2021 Applicants
Fourth Applicant:
NATALIE SNELLING AS REPRESENTATIVE FOR ZACK SNELLING, A MINOR
Fifth Applicant:
LIAM ARNOLD-LEVY
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