Keyzer v La Trobe University
[2019] FCA 646
•10 May 2019
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 37AIFederal 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
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. He has applied to the Court for declaratory and other relief in connection with the University’s conduct of the investigation. The investigation arises from certain complaints made against Professor Keyzer by the interveners in this application, Dr Jillian Murray and Ms Libby Brenton.
The investigation of the complaints is governed by two collective agreements between the University and the relevant employees, the La Trobe University Collective Agreement 2014 ([2014] FWCA 4222) and the La Trobe University Collective Agreement 2018 ([2018] FWCA 3749). There is no material difference between the collective agreements for the purposes of this application.
Dr Murray and Ms Brenton made separate complaints relating to different occasions on which it is alleged that Professor Keyzer engaged in misconduct, or serious misconduct, within the meaning of the relevant provisions of the collective agreement applicable at the time. The alleged conduct may, if proven, be found to constitute bullying, though that is a conclusion which first requires a close consideration of the behaviour in question. It is unnecessary for me to consider the veracity of the complaints for the purpose of this application and I make no comment as to their merits.
Professor Keyzer claims that the procedures under the applicable collective agreements have not been complied with by the University and accordingly that his suspension was unlawful. The principal proceeding was listed for a case management conference on 3 April 2019. Professor Keyzer had applied for interlocutory orders restraining the University from continuing any further disciplinary action against him. That application, which had been provisionally fixed for hearing on 5 April 2019, was resolved by agreement between Professor Keyzer and the University in return for the giving of undertakings and cross-undertakings, making it unnecessary at present to determine any application for interlocutory relief.
At the case management hearing on 3 April 2019, Mr Gunst QC who appeared for the interveners sought leave to intervene in the principal proceeding for the limited purpose of seeking a suppression or non-publication order relating to their identities and to any material which would tend to reveal the nature of the complaints made by them. I made orders pursuant to s 37AI of the Federal Court of Australia Act 1976 (Cth) that until 4.15pm on 5 April 2019, or further order, the identities of Dr Murray and Ms Brenton should not be published or disclosed and adjourned the application until that day.
The University did not oppose the making of a suppression or non-publication order. Dr Trichardt, who appears for Professor Keyzer in the principal proceeding, said that Professor Keyzer neither opposed nor consented to such orders. I asked Dr Trichardt whether he would assist the Court by acting as a contra dicta in relation to the application in the capacity as amicus curiae. Dr Trichardt agreed to assist the Court in that capacity and I record my appreciation for the assistance provided by him.
The application for leave to intervene was heard on 5 April 2019. Written submissions were provided on behalf of the interveners in advance of the hearing as well as by Dr Trichardt. The University also filed written submissions in advance of the 5 April hearing, though took no further part in the application and did not appear.
In the course of oral submissions, an issue arose concerning the extent to which Dr Murray may have communicated with others at the University about the subject matter of her complaints concerning Professor Keyzer. To allow evidence to be put before the Court concerning this issue, the further hearing of the application was adjourned until 11 April 2019. The interim suppression order made on 3 April 2019 was extended to 11 April 2019.
Prior to the hearing on 11 April 2019, further written submissions were provided on behalf of the interveners, as well as by Dr Trichardt. On 8 April 2019, a second affidavit affirmed by Dr Murray was provided concerning the issue of disclosure to which I have referred above. I shall return to the significance of this issue below.
On 11 April 2019, I further extended the interim suppression order until further order pending my consideration of the application.
Leave to intervene
The power to make a suppression or non-publication order is governed by Part VAA of the Act.
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.
There is no other source of power to make an order of this kind. Further, the Court is required by sub-section (2) to specify the ground or grounds upon which the order is made.
Section 37AE of the Act imposes an overarching normative standard to be considered in all cases where a suppression order is sought. The Court must take into account in considering such an application “that a primary objective of the administration of justice is to safeguard the public interest in open justice.”
The grounds relied upon by the interveners
The only ground relied upon by the interveners is in s 37AG(1)(a), that the order is “necessary to prevent prejudice to the proper administration of justice”. In substance, the contention advanced on the interveners’ behalf was that the complaints procedure under the collective agreements imposed obligations of confidentiality on the University and the academic staff bound by the agreements. Those obligations extended to the complainants’ identities as well as the subject matter of their complaints. It was submitted that confidentiality in the grievance procedure under the collective agreements would effectively be lost or undermined if a suppression order were not made preventing disclosure of the identities of Dr Murray and Ms Brenton as well as the subject matter of their complaints. Further, it was submitted on behalf of the interveners that if the confidentiality of the grievance procedure were not preserved, this would have a ‘chilling effect’ on the willingness of others to come forward in the future under the grievance procedure. It was contended that such a ‘chilling effect’ would be inimical to the proper administration of justice.
In addition to the collective agreements, the interveners relied upon the University’s Workplace Behaviours Policy, in place at the relevant times. The Policy also contained a grievance resolution procedure. That procedure contained materially similar provisions relating to confidentiality. Clause 82 of the Policy provided that: “confidentiality must be adhered to during and after the process of making and resolving complaints”. Clause 83 provided that: “[s]hould a staff member’s complaint become more widely known, there is the potential for undue embarrassment and workplace tension.”
Was the confidentiality lost?
A preliminary question arose as to whether the confidentiality of the identities of the complainants and the substance of their complaints had been lost prior to this application. In relation to Dr Murray this question arose in connection with email communications with five other employees who had apparently expressed some concerns to her about Professor Keyzer’s conduct.
As I have said, I allowed Dr Murray to submit a further affidavit explaining these communications. In her second affidavit affirmed on 8 April 2019, Dr Murray stated that the emails had been sent at the request of the Director, Workplace Relations and Safety, of the University. The Director had requested that Dr Murray tell other staff who had approached her about Professor Keyzer to inform them that they should contact the Director. The evidence about such other concerns is non-specific and the investigation of Professor Keyzer proceeded only in relation to the complaints of Dr Murray and Ms Brenton. I am satisfied that the communications from Dr Murray to the five other staff members were at the behest of the Director, and that the communications were to persons who were themselves bound by the confidentiality obligations under the collective agreements. Further, I note that Dr Murray sent the five individuals separate but identical emails. The email informed those staff members that an external investigator would be appointed to examine allegations made about Professor Keyzer and invited them to contact the relevant University officer if they wished to make a statement in relation to the investigation. I do not consider the confidentiality attaching to the grievance process to have been lost by reason of these communications.
A further and more significant matter concerning the question of whether the confidentiality had been lost arose by reason of the publication of the interveners’ identities and some details of their complaints in an online journal called Lawyerly, published by Lawyerly Media. The Lawyerly publication is available on its website in summary form, but the full text of articles contained in the publication are available only on a subscription basis. There is no evidence before the court as to the number of subscribers to this publication.
In her first affidavit, Dr Murray explained that she became aware of the principal proceeding on 25 March 2019 after having had her attention drawn to an article published in Lawyerly which named her and Ms Brenton as the complainants in the grievance process. Following that publication, the University wrote to Lawyerly to request that the article be amended to remove reference to the names of Dr Murray and Ms Brenton. Lawyerly Media agreed to that request.
It is not clear from the evidence how long that unredacted article remained on the Lawyerly website. It is likely that this version of the Lawyerly article was available for at least several days.
The publication by Lawyerly of the unredacted article, probably for several days, is sufficient reason to refuse the application. The identity of Dr Murray and Ms Brenton and the substance of their complaints had been effectively disclosed before this application was made. That is not to say that the further publication of articles in Lawyerly or other media would not aggravate the embarrassment or distress already felt by Dr Murray or Ms Brenton caused by the publication of their identities and the substance of their complaints. In my view once the publication occurred as I have described above, and assuming for present purposes that there would otherwise have been good grounds to make the orders sought, making a suppression order after the publication of the Lawyerly article would not cure the gravamen of the interveners’ complaints and would likely be ineffectual. The making of an order that is, or is likely to be, ineffectual, ex hypothesis is not capable of being necessary to prevent prejudice to the proper administration of justice as required by s 37AG(1)(a) of the Act.
Further, as a matter of principle, the Court should not make a proscriptive order that is, or is likely to be, practically ineffectual. The making of an order in those circumstances exposes the Court, and the administration of justice, to ridicule. Needless to say, that is the very opposite effect of the criterion mandated by s 37AG(1)(a).
If the confidentiality were preserved, would an order be necessary?
Even if the disclosure in the Lawyerly article had not occurred, for the reasons that follow, the grounds advanced on behalf of the interveners do not provide a sufficient basis for making the orders pursuant to s 37AG(1)(a).
Before turning to these grounds, I note that mere embarrassment, inconvenience or annoyance will not suffice to ground an application for suppression or non-publication: ACCC v Cascade Coal Pty Ltd (2015) 331 ALR 68; [2015] FCA 607 at [30] per Foster J. Similarly, in Secretary, Department of Justice and Regulation v Zhong (No 2) [2017] VSCA 19 at [9] Santamaria, Ferguson and McLeish JJA held that “distress or invasion of privacy is insufficient to warrant the making of a pseudonym order” pursuant to the inherent power of the Supreme Court of Victoria. This conclusion is apposite in relation to the ground in s 37AG(1)(a). Subsection 37AG(1)(d) provides that “undue distress or embarrassment” may justify an order, but only in circumstances concerning a “criminal proceeding involving an offence of a sexual nature”. There is no suggestion whatsoever of any impropriety of a sexual nature in relation to Professor Keyzer.
Preservation of the confidentiality of the grievance procedure
It was submitted that protection of confidentiality of the grievance process was necessary to preserve the proper administration of justice for analogous reasons to those recognised in cases involving the protection of confidential information, including commercially sensitive information. Reliance was placed upon ACCC v Air New Zealand (No 3) [2012] FCA 1430 per Perram J at [35]. I do not agree that the well-recognised need to preserve confidential information, including commercially sensitive information, supports this application for suppression. Confidential information disclosed in court proceedings is protected for a number of well recognised reasons which need not be repeated here. The protection of confidential information in the context of litigation involving trade rivals is a clear example: see, for example, Mobil Oil Australia Ltd and Anor v Guina Developments Pty Ltd and Anor [1996] 2 VR 34.
It was further argued that the Court should ensure that its processes do not undermine, or lead to a breach, of the confidentiality to which the interveners, as complainants under the grievance process, are entitled; or to a consequential breach of the Fair Work Act pursuant to s 50 of that Act. The assumption embedded in this contention is that the Court’s processes should conform to the grievance process contained in the collective agreements and Policy. I do not agree. Relevantly, the Court’s process is governed by Part VAA of the Act.
A similar contention that the regime under the Act should be influenced by an antecedent confidentiality regime was advanced in Herald & Weekly Times Limited v Gregory D Williams (formerly identified as VAI) [2003] FCAFC 217. That case concerned the question of whether the confidentiality afforded to a tax payer in proceedings before the Administrative Appeals Tribunal (AAT) should be maintained in proceedings before the Court. Section 14ZZE of the Taxation Administration Act 1953 (Cth) provided that:
Despite section 35 of the AAT Act, the hearing of a proceeding before the Tribunal for:
(a) a review of a reviewable objection decision;
…
is to be in private if the party who made the application requests that it be in private.
This question arose in connection with the predecessor to s 37AF of the Act, at the time, s 50 of the Act. Section 50 provided that:
The Court may, at any time during or after the hearing of the proceeding in the court, make such order forbidding or restricting the publication of particular evidence, or the name of the party or witness, as appears to the court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth.
This section is materially the same as the ground contained in s 37AG(1)(a). Merkel J, with whom Finn and Stone JJ agreed, held that the primary Judge had erred in giving what his Honour described as “practical effect” to the statutory entitlement to privacy and confidentiality under s 14ZZE of the Taxation Administration Act. Merkel J (at [30]-[31]) said:
The fundamental differences between the AAT and the Court, and the different criteria that are to be applied in respect of suppression orders under s 35 of the AAT Act and s 50 of the FCA Act, afford strong support for the view that there is no legislative intention that the privacy and confidentiality in relation to a matter in the AAT should continue when that matter, or a part thereof, comes before the Court. When the matter comes before the Court pursuant to ss 44 or 45 of the AAT Act, s 39B of the Judiciary Act 1903 (Cth) or s 5 of the Administration Decisions (Judicial Review) Act 1977 (Cth) the criterion prescribed by s 50 must be satisfied before a suppression order may be made.
Thus, before exercising the power conferred by s 50 of the FCA Act the primary judge was required to determine whether it appears that the order sought was “necessary in order to prevent prejudice to the administration of justice”. Section 50 is concerned with prejudice in respect of the exercise by the Court of the judicial power of the Commonwealth, rather than prejudice in respect of the exercise by the AAT of the administrative power of the Commonwealth. Maintaining or, as the primary judge put it, “giving practical effect” to Williams’ statutory entitlements to privacy and confidentiality in relation to the application for administrative review in the AAT may, or may not, be necessary in order to prevent prejudice to the exercise by the AAT of its powers but cannot, standing alone, be necessary in order to prevent prejudice to the exercise by the Court of its judicial powers.
In substance, the contention on behalf of the interveners is that practical effect should be given to their rights of confidence arising under the collective agreements and the Policy. As the Full Court concluded in Herald & Weekly Times at [33], giving “practical effect” to those entitlements “cannot afford a proper basis … to determine that a similar order appears to be ‘necessary in order to prevent prejudice to the administration of justice’.”
The ‘chilling effect’ of not making an order
In the interveners’ supplementary written submissions dated 5 April 2019 at [17] it was submitted that:
Another recognised category is where the disclosure would have a chilling effect on future processes, as Mahoney JA said (Hope AJA agreeing) in John Fairfax Group Pty Ltd v Local Court of NSW (1991) 26 NSWLR 131 at 161:
This leads to the consideration of what is meant by “necessary to secure the proper administration of justice” in this context. The phrase does not mean that if the relevant order is not made, the proceedings will not be able to continue. Plainly they can. If the name of an informer is not hidden under a pseudonym, the proceeding will go on: at least, the instant proceeding will.... The basis of the implication is that if the kind of order proposed is not made, the result will be – or at least will be assumed to be – that particular consequences will flow, that those consequences are unacceptable, and that therefore the power to make orders which will prevent them is to be implied as necessary to the proper function of the court. The kinds of consequences that, in this sense, will be seen as unacceptable may be gauged by those involved in the cases in which statutory courts have been accepted as having restrictive powers. Thus, there will be hardship on the informer or the security officer or the blackmail victim; the future supply of information from such persons will end or will be impeded; and it will be more difficult to obtain from such persons the evidence necessary to bring offenders before the courts and deal with them.
John Fairfax Group concerned common law exceptions to the principle of open justice. The principal question was whether a suppression order, effected by the device of a pseudonym order, was correctly made to protect an informant in an extortion case which did not have the incidence of blackmail. A Magistrate had granted the order absent an express statutory power to do so. The question on appeal was whether such a power existed in the inherent power of the court, and if so, whether the order should have been made in the circumstances.
Mahoney JA, with whom Hope AJA agreed, upheld the Magistrate’s decision to make the pseudonym order.
At common law the power to suppress proceedings or conduct hearings in camera has been long held to exist in certain classes of case falling into what is referred to as the “Scott qualification” to the open courts principle: Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 345-346 per Mahoney JA, referring to Scott v Scott [1913] AC 417 at 448 per Earl Loreburn; see also Russell v Russell (1976) 134 CLR 495 at 520 per Gibbs J. The Scott qualification mandates that a proceeding may be conducted in private, or names be suppressed, where it is necessary to do so in order that justice be done in accordance with law: Mayas at 345 per Mahoney JA. Although not binding, the common law authorities concerning the exceptions to the open justice principle are instructive when considering the scope of the ground in s 37AG(1)(a).
The interveners sought to extrapolate from the “Scott qualification” a principle to the effect that, exposure to publicity arising from a court proceeding in connection with the grievance process that has a “chilling effect” upon the preparedness of a complainant to come forward and invoke the process should be recognised as falling within the common law exceptions to open justice. For the same reasons such agreements should be recognised as satisfying the criterion in s 37AG(1)(a).
John Fairfax Group was concerned with the consequences that might flow if the identity of an informer were not protected. The apprehended consequences concerned the “chilling effect” upon future cases in specific categories of criminal offences unless the identities of informers were protected. The majority, Mahoney JA and Hope AJA held that the exception applied. Kirby P, dissenting, held that the Magistrate did not have power to make a pseudonym order in relation to the category of offence concerned, namely an extortion case not having the incidence of blackmail.
In this application, the “chilling effect” concerns the preparedness of complainants to come forward and invoke a grievance process outside the curial process. I accept that the potential for publicity associated with a proceeding issued in connection with the grievance process may have an adverse effect upon the preparedness of complainants to invoke the process. However, in my view, that is not a sufficient reason of itself to warrant a suppression order by this Court in connection with such proceedings.
As I have said above, the protection afforded to a tax payer under the Taxation Administration Act in proceedings before the AAT does not provide, of itself, a basis for satisfying the ground in s 37AG(1)(a).
The reasons for confidentiality in connection with a grievance process of the kind with which this application is concerned and the reasons for the protection of the privacy of a taxpayer under s 14ZZE of the Taxation Administration Act are likely to be quite different. The reasons for confidentiality in connection with a grievance process are likely to be more complex and nuanced, as plainly the process touches upon the personal relationships between colleagues within a workplace where the relationships have become strained. The potential for further adverse impact upon relationships once a formal complaint has been made concerning a colleague, particularly a senior colleague, is readily foreseeable. The potential for adverse impact upon the health and wellbeing of all those involved is also very real. Indeed, both Dr Murray and Ms Brenton have referred to the adverse impact upon their health and wellbeing arising from their apprehensions about the further disclosure of their identities or further publication of the details of their complaints. They are both also concerned about the impact that further publication of their identities may have upon their reputations. The concerns expressed by Dr Murray and Ms Brenton are plainly legitimate and significant matters for them personally.
In John Fairfax Group the ineluctable tension between recognising the personal toll on individuals exposed to the glare of publicity surrounding court proceedings and the interests of open justice are aptly juxtaposed in the judgment of Mahoney JA at 163-164, and in the dissenting judgment of Kirby P at 140 and 142-143. Mahoney JA (at 163-164) said:
Three things at least may be said about the open conduct of the courts. First, it can and does cause pain and loss to individuals. Secondly, the open conduct of the courts is not an end in itself: the principle is adopted because it is seen as a means of achieving the fundamental end, the proper administration of justice. And, thirdly, what is to be achieved is the proper administration of justice but with the least harm to those who, in the course of it, will have harm inflicted on them. The issue in the present case is how this can be achieved.
The submissions made for the media interests in the present proceeding have been far reaching and, in deference to them, it is appropriate that I indicate why in this regard I do not accept them.
First, it is important to remember — because, in what is said about the open conduct of the courts, it appears sometimes to be forgotten — that the open conduct of the courts can cause great pain and loss to those touched by what is done and what is publicised. It is, in my opinion, the function of the law — and the obligation of the courts in administering it — to avoid such pain and loss to the extent that it is possible to do so. To the extent that this detriment to the individual is not avoided, the law is deficient and the courts have been less than fully effective.
Secondly, the assumption which, I think, sometimes emerges from what is urged for the open conduct of courts is that that principle is to be upheld and the right to publish is to be unrestricted notwithstanding that the individual suffers for it. If this assumption underlies the submissions made in the present proceeding, it is an assumption which I would not accept. As I have said, the principle that the courts are to be open and that the media may publish what is done in them is not an end in itself. The principle is adopted because it is judged to be the means by which other and more fundamental goods will be achieved. The power which the community gives to any person, whether he be in Parliament, an official in government, or a judge is to be exercised properly and accountably. And, it is believed, that will be achieved if the power is exercised, as in the present case, in open court and subject to full publicity.
But this is not an unalloyed panacea. Experience has shown that open courts and unrestricted media publicity produce bad as well as good consequences: the principle is adopted, not because it is an unalloyed panacea, but because it is the least worst method of securing the proper exercise of judicial power and accountability for it.
Thirdly, it is for these reasons proper to consider whether and in what way the open court principle can be maintained without unacceptable detriment to individuals and the proper administration of justice.
There is no simple rule which will achieve the proper accommodation of the control of judicial power and accountability for it on the one hand and the avoidance of personal and public harm on the other. The expedient of granting a discretion to every judge to balance the principle of open courts against the harm in the individual case has not been accepted. And the courts have, I think, been conscious that in this area, the acceptance of restrictions for good reasons is apt to lead to the imposition of them for bad. But there is a well accepted recognition by the courts that, where “necessary”, the principle of open courts is to be qualified. “The Scott qualification”: see Attorney-General for New South Wales v Mayas Pty Ltd [(1988) 14 NSWLR 342] (at 345); is well-established. It extends beyond the present context of informers, security officers and blackmail victims to other cases where the open court principle has been seen as “necessary”. The qualifications to be imposed “must be commensurate with the purpose for which the jurisdiction exists”: Scott v Scott [1913] AC 417 at 448 per Earl Loreburn. It may extend, as in Scott v Scott, to an order for the hearing of a proceeding in camera and even to a direction that the evidence be not published. The making merely of a pseudonym order of the present kind is, I think, within the bounds of what, where necessary, may be done.
Kirby P at 140 said:
Wholly secret trials, unknown to friends and unreported to the community, has been such a feature of the oppressive régimes of recent memory as to reinforce, in this generation, the wisdom of the common law principle of openness and publicity in the administration of justice. We should not assume that Australian society is immune from the erosion of this feature of our liberties: cf Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 187f. The courts, as protectors of such abiding freedoms, must be ever vigilant against derogations from them. They should confine such derogations to those strictly permitted by the common law or allowed under the clear authority of Parliament. However well meaning the derogations may be in particular cases, history, and not only ancient history, demonstrates the way in which exceptions can multiply and the principle of the open administration of justice, publicly reported, can be destroyed.
Other civilised legal systems have adopted different principles for the administration of justice. Thus, in civil law countries, many procedures which are conducted in England and Australia in open court are dealt with on papers on the judicial officer's cabinet. Neither in Germany nor the Netherlands are parties normally named (except by initials), in law reports, including in the media. Arguments have been advanced for a similar approach in our system: see Roderick Munday, “Name Suppression: an adjunct to the presumption of innocence and to mitigation of sentence —1” [1991] Crim L Rev 680. But we, who are the heirs of the common law of England, have so far accepted a different rule. It is one which permeates our institutions of justice. In the case of criminal charges, internationally recognised statements of basic human rights affirm the right to public trial to which the Press has access. They permit derogations only (relevantly) to the “extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice”: see, eg, International Covenant on Civil and Political Rights, art 14(1).
And at 142-143 said:
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: see, eg, David Syme & Co Ltd v General Motors-Holden's Ltd [[1984] 2 NSWLR 294] (at 307); Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 (at 58); R v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [1984] QB 227 at 235; R v Bromfield [(1991) 6 WAR 153], Malcolm CJ (at 22); Rockett v Smith [[1992] 1 Qd R 660], per Derrington J (at 7). 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.
In Herald & Weekly Times Limited v Gregory D Williams, Merkel J (at [34]) cited with approval the passage referred to above from the dissenting judgment of Kirby P at 142. I echo the sympathy expressed by Mahoney JA for the “great pain” that is often felt by those subjected to publicity surrounding court proceedings. However, the power conferred by s 37AF is constrained by the grounds under s 37AG and by the overlay of priority to be given to the public interest served by open justice pursuant to s 37AE. In my view, s 37AG(1)(a) makes clear that the public interest served by open justice may only be qualified where it is necessary in the strictest sense to prevent prejudice to the proper administration of justice. The legitimate personal interest of the interveners in maintaining their privacy in connection with the complaints process is not sufficient to conclude that the protection of their interests is necessary to prevent prejudice to the administration of justice.
Accordingly, the application is refused.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Anastassiou. Associate:
Dated: 10 May 2019
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