Keyzer v La Trobe University

Case [2019] FCA 646

FEDERAL COURT OF AUSTRALIA

Keyzer v La Trobe University [2019] FCA 646

File number: VID 265 of 2019
Judge: ANASTASSIOU J
Date of judgment: 10 May 2019
Catchwords:

PRACTICE AND PROCEDURE – whether workplace complainant’s name should be supressed – loss of confidentiality – Federal Court of Australia Act 1976 (Cth) ss 37AA, 37AE, 37AF, 37AG(1)(a) and (d), 37AH and 37AI

PRACTICE AND PROCEDURE – leave to intervene under rule 9.12 of the Federal Court Rules 2011 (Cth) – leave to intervene for purpose of application for suppression or non-publication order – whether leave necessary – leave not necessary – leave granted in any event

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth)
Fair Work Act 2009 (Cth)
Federal Court of Australia Act 1976 (Cth), ss 37AA, 37AE, 37AF, 37AG(1)(a) and (d) and 37AI

Federal Court of Australia Rules 2011 (Cth), r 9.12 Taxation Administration Act 1953 (Cth)
Cases cited:

ACCC v Air New Zealand (No 3) [2012] FCA 1430

ACCC v Cascade Coal Pty Ltd (2015) 331 ALR 68

Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342

Herald & Weekly Times Limited v Gregory D Williams (formerly identified as VAI) [2003] FCAFC 217

John Fairfax Group Pty Ltd v Local Court of NSW (1991) 26 NSWLR 131

Mobil Oil Australia Ltd and Anor v Guina Developments Pty Ltd and Anor [1996] 2 VR 34

Russell v Russell (1976) 134 CLR 495

Scott v Scott [1913] AC 417

Secretary, Department of Justice and Regulation v Zhong (No 2) [2017] VSCA 19
Date of hearing: 3, 5 and 11 April 2019
Date of last submissions: 10 April 2019
Registry: Victoria
Division: Fair Work Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 48
Counsel for the Applicant: The applicant did not appear
Counsel for the Respondent: The respondent did not appear
Counsel for the Interveners: Mr C Gunst QC
Solicitor for the Interveners: Holding Redlich
Counsel appearing as Amicus Curiae: Dr A P Trichardt

ORDERS

VID 265 of 2019
BETWEEN:

PATRICK DENIS KEYZER

Applicant
AND:

LA TROBE UNIVERSITY

Respondent

DR JILLIAN MURRAY

First Intervener

LIBBY BRENTON

Second Intervener

JUDGE:

ANASTASSIOU J

DATE OF ORDER:

10 MAY 2019

THE COURT ORDERS THAT:

1.The interveners have leave to intervene for the purpose of this application.

2.The interim suppression order made under s 37AI on 11 April 2019 be revoked.

3.The application for suppression or non-publication orders be dismissed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

ANASTASSIOU J:

Introduction

  1. Before the Court is an application for leave to intervene in the principal proceeding for the purpose of seeking suppression or non-publication orders.  The principal proceeding concerns the suspension from work of the applicant, Professor Keyzer, who is Chair of Law and Public Policy and Head of the School of Law at the respondent, La Trobe University.  Professor Keyzer was suspended on full pay pending an investigation by the University into alleged misconduct by him.…

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Details
AGLC
Keyzer v La Trobe University [2019] FCA 646
Case
[2019] FCA 646
Decision Date

CaseChat Overview and Summary

The matter of Keyzer v La Trobe University before the Federal Court involved a dispute regarding the suppression of the identities of complainants in a workplace harassment case. The complainants, Dr Murray and Ms Brenton, sought suppression and non-publication orders to protect their identities from being disclosed during the proceedings. The respondent, Keyzer, opposed these orders, arguing that the complainants did not meet the statutory definition of a "party" under the Federal Court of Australia Act 1976, as they had not been formally tendered or read in the proceeding. This case examined the interpretation of the relevant sections of the Act and the rules concerning the definition of a party and the conditions under which suppression orders could be granted.

The primary legal issue before the Court was whether the complainants could be considered parties under the Act for the purpose of applying for suppression or non-publication orders, despite their names being mentioned in an affidavit that had not been formally tendered or read in the proceeding. The Court also needed to determine whether the complainants had the right to intervene in the application for suppression orders and if such leave was necessary under the Federal Court Rules 2011. Finally, the Court had to decide whether the orders sought by the complainants could be justified under the grounds specified in the Act.

The Court held that the definition of a party in s 37AA of the Act should be interpreted in a manner consistent with the objective purpose of permitting persons named in an affidavit to apply for a suppression order. The Court concluded that it was sufficient for a person to be named in an affidavit filed in the proceeding, regardless of whether the affidavit had been formally tendered or read. This interpretation avoided rendering the application for suppression orders futile. Regarding the leave to intervene, the Court granted the leave for the limited purpose of the application, despite finding it unnecessary as the complainants could still be considered parties under the Act. Ultimately, the Court dismissed the application for suppression or non-publication orders, finding that the orders were not necessary to meet any of the specified grounds in s 37AG of the Act.

In conclusion, the Court revoked the interim suppression order made on 11 April 2019 and dismissed the application for suppression or non-publication orders. The complainants were granted leave to intervene for the purpose of this application. The Court's decision hinged on the interpretation of the relevant statutory provisions and the rules concerning parties and intervention, ultimately determining that the complainants' application did not meet the necessary criteria for suppression orders.

Orders

Orders of the court

1. The interveners have leave to intervene for the purpose of this application.

2. The interim suppression order made under s 37AI on 11 April 2019 be revoked.

3. The application for suppression or non-publication orders be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 37AH provides that the Court may make a suppression order or non-publication order, inter alia, on the application of a “party” to the proceeding concerned. For the purposes of s 37AH a party is defined in s 37AA to mean: … the complainant or victim (or alleged victim) in a criminal proceeding and any person named in evidence given in a proceeding and, in relation to a proceeding that has concluded, means a person who was a party to the proceeding before the proceeding concluded.(emphasis added) In an affidavit of Professor Keyzer affirmed on 16 March 2019 in support of his application for interlocutory relief, he refers to Dr Murray and Ms Brenton by name. However, as the application was resolved for present purposes, the affidavit was not formally tendered, or taken to be tendered or read. The word “given” in s 37AA is expressed in the past tense. As a matter of plain textual construction, it may be construed as requiring that the affidavit naming the person concerned be tendered, or read, before a person named in the affidavit is a party within the meaning of the above definition. If s 37AA were so construed it is conceivable that a person named in an affidavit may be deprived, as a matter of right, from applying for a suppression or non-publication order on a quia timet basis. This could lead to an application for suppression being rendered futile. Having regard to the evident purpose of permitting persons named in an affidavit to apply for a suppression order, in my view the reference to evidence “given” in the proceeding could not have been intended to require that the affidavits be formally tendered or read before the person named in it can come within the definition of a party. The objective purpose of the provision is to permit a person about whom there will, or may be, evidence given in the proceeding to apply for a suppression order. In my view, it is sufficient for the purpose of the definition in s 37AA that the person be named in an affidavit filed in the proceeding, whether or not the affidavit has been formally tendered or read. If I am wrong in this view, I would give Dr Murray and Ms Brenton leave to intervene under Rule 9.12 of the Federal Court of Australia Rules 2011, for the limited purpose of this application. Power to make suppression or non-publication Dr Murray and Ms Brenton seek an order in the following form:Until the trial of this proceeding or further order, the disclosure of information (by publication or otherwise) tending to reveal the identity of the complainants [being Dr Murray and Ms Brenton] named in the pleadings and in the evidence in this proceeding, and any evidence about their complaints, is prohibited. The power to make such an order is found in s 37AF of the Act. The grounds upon which the order may be made are exhaustively defined in s 37AG:(1) The Court may make a suppression order or non-publication order on one or more of the following grounds:(a) the order is necessary to prevent prejudice to the proper administration of justice;(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;(c) the order is necessary to protect the safety of any person;(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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