Lawrance v Commonwealth of Australia & Ors
[2006] FMCA 1792
•17 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LAWRANCE v THE COMMONWEALTH OF AUSTRALIA & ORS | [2006] FMCA 1792 |
| HUMAN RIGHTS – Jurisdiction in an application to the Court – identification of the respondents to the terminated complaint – application to join additional respondents – examination of complaints made to HREOC – joinder refused. HUMAN RIGHTS – Practice – anonymity order sought to avoid embarrassment and distress – whether necessary to prevent prejudice to the administration of justice – anonymity refused. |
Federal Court of Australia Act 1976 (Cth), s.50
Federal Magistrates Act 1999 (Cth), ss.8(1), 18, 61
Federal Magistrates Court Rules 2001 (Cth), rr.7.01, 11.02(2), 21.02(2)(a)
Disability Discrimination Act 1992 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss.3, 46PF(3), 46PH(1)(b), 46PO, 46PO(1), 46PO(2), 46PO(3)
Sex Discrimination Act 1984 (Cth)
Australian Broadcasting Commission v Parish (1980) 29 ALR 228
Gauci v Kennedy & Anor [2005] FMCA 1505
Herald & Weekly Times Ltd v Williams (2003) 130 FCR 435
John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131
Johnston v Cameron (2002) 124 FCR 160
Lawrance v President, Administrative Appeals Tribunal (2006) 42 AAR 552
Russell v Russell (1976) 134 CLR 495
Travers v State of New South Wales [2000] FCA 1565
| Applicant: | AROHA LAWRANCE |
| First Respondent: | THE COMMONWEALTH OF AUSTRALIA |
| Second Respondent: | THE STATE OF NEW SOUTH WALES |
| Third Respondent: | THE DEPARTMENT OF FAMILY, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS |
| Fourth Respondent: | CRS AUSTRALIA |
| Fifth Respondent: | THE AUSTRALIAN GOVERNMENT SOLICITOR |
| Sixth Respondent: | THE FEDERAL COURT OF AUSTRALIA |
| File Number: | SYG2015 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 17 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 17 November 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First, Third, Fourth, Fifth and Sixth Respondents: | Ms D Watson |
| Solicitors for the First, Third, Fourth, Fifth and Sixth Respondents: | Australian Government Solicitor |
| Counsel for the Second Respondent: | Mr P Moorhouse |
| Solicitors for the Second Respondent: | Crown Solicitor’s Office NSW |
ORDERS
The applicant has leave under rr.11.02(2) and 7.01 to file an amended application including as respondents to the proceeding, and seeking relief against, the following persons: Andras Markus, Kim Lackenby, Michael Wall, Michael Packer, John Petkovshek, Juliet Curtin, and Gerard English.
The applicant is refused leave to include as respondents to the proceeding, and to seek relief against, the other proposed respondents identified in the draft amended application attached to the applicant’s affidavit filed on 28 August 2006.
Any such amended application must be filed and served on the legal representative of each of those persons and on the current respondents no later than 12 January 2007.
All evidence in chief in the proceeding shall be by way of affidavits.
The applicant is to file and serve on the respondents any additional affidavits containing the evidence of herself and her witnesses on which she intends to rely, together with any amended Points of Claim, on or before 12 January 2007.
Any request by a respondent for particulars is to be served no later than 16 February 2007.
The applicant must answer requests for particulars no later than 2 March 2007.
The respondents must file and serve Responses in form 168, Points of Defence, and all affidavits they intend to rely upon on or before 30 March 2007.
The applicant is to file and serve on the respondents any affidavits in reply on or before 13 April 2007.
No subpoenas are to be issued by the Registry without the prior leave of the Court.
The proceeding is listed for directions on 18 May 2007 at 10.15 a.m. for the purpose of considering any application for the issue of subpoenas and/or orders for discovery. Seven days prior to that date, the applicant is to file and serve copies of the subpoenas which she seeks leave to issue and/or a list of the categories of documents for which she seeks discovery.
The application is adjourned to that date for such further directions as may be appropriate, including fixing a hearing date.
All future interlocutory applications are to be made returnable at that listing.
Before that listing, the Court will only consider directing changes to the above timetable if the parties submit short minutes proposing the change which are signed by all parties.
The applicant must pay the costs incurred by the Director‑General of the NSW Department of Health, and the Minister for Disability Services (NSW) in relation to the applicant’s application for their joinder. Their joint costs are determined under r.21.02(2)(a) in the amount of $1,250.
The applicant must pay the costs incurred by the Social Security Appeals Tribunal, Centrelink, and the Refugee Review Tribunal, in relation to the applicant’s application for their joinder. Their joint costs are determined under r.21.02(2)(a) in the amount of $1,250.
The applicant must pay the costs incurred by the Principal Solicitor of the Macarthur Legal Centre and Margaret Pantall in relation to the applicant’s application for their joinder. Their joint costs are cumulatively determined under r.21.02(2)(a) in the amount of $1,250.
The applicant must pay the costs incurred by the Chief Executive Officer of Phillips Fox, Judith Healey and Megan Foster in relation to the applicant’s application for their joinder. Their joint costs are determined under r.21.02(2)(a) in the amount of $2,000.
The applicant must pay the costs incurred by Dr Margaret Pickles in relation to the applicant’s application for their joinder. Her costs are determined under r.21.02(2)(a) in the amount of $1,250.
The costs of the other parties or proposed parties are their costs in the proceeding.
Any list of authorities concerning the making of an anonymity order in relation to the applicant are to be filed and served within 7 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2015 of 2006
| AROHA LAWRANCE |
Applicant
And
| THE COMMONWEALTH OF AUSTRALIA |
First Respondent
| THE STATE OF NEW SOUTH WALES |
Second Respondent
| THE DEPARTMENT OF FAMILY, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS |
Third Respondent
| CRS AUSTRALIA |
Fourth Respondent
| THE AUSTRALIAN GOVERNMENT SOLICITOR |
Fifth Respondent
| THE FEDERAL COURT OF AUSTRALIA |
Sixth Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The principal matter before me is an application filed in the Federal Court of Australia on 14 June 2006 naming six respondents, being the Commonwealth of Australia, the State of New South Wales, the Commonwealth Department of Families, Community Services and Indigenous Affairs, CRS Australia, the Australian Government Solicitor and the Federal Court Agency. It indicated that it was an application brought under s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the Act”) in relation to “complaints terminated by the President of the Human Rights and Equal Opportunity Commission under section 46PH of the Act, by Notice of Termination dated 30 May 2006”.
A copy of the notice of termination was also filed at that time, and is Exhibit A before me today. It attaches the Commission’s reasons for terminating a complaint made to it by the applicant, and attaches the documents containing the complaint which was terminated. The notice of termination is headed with the names of 16 persons or organisations who were, in the opinion of the Human Rights and Equal Opportunity Commission (“the Commission”), the respondents to the complaint. They include the six entities who were originally named as respondents to the application to this Court.
The other respondents to the complaint who were identified as such by the Commission, included several Federal Court justices, various identified members of the staff of the Federal Court’s Sydney registry, and one solicitor employed by the Australian Government Solicitor. I shall further analyse below the nature of the complaints which were terminated, and the manner in which the applicant identified the persons about whom she complained.
By order dated 18 July 2006, Madgwick J ordered the transfer of the proceeding to this Court. It seems that no directions had been given in the Federal Court as to the future course and conduct of the proceeding.
On 21 July 2006 the applicant filed a notice of motion seeking leave for the applicant to file an amended application and additional points of claim. Orders in relation to substituted service were also sought in relation to some of a number of proposed additional respondents. The interlocutory application was made returnable before me on 11 August 2006, and I then adjourned it for hearing today.
The proposed amended application is attached to an affidavit by the applicant filed on 28 August 2006. It identifies 28 persons or organisations whom the applicant wishes to join to the proceedings, including the existing respondents. In substitution for the State of New South Wales, the applicant now seeks to separate the Director‑General of the Department of Health and the Minister for Aging, Disability and Home Care (NSW). However, I am satisfied that the State of New South Wales is the proper entity to be sued in relation to the two respondents which the Commission identified as “Department of Health” and “Department of Community Services”. The applicant appears now to accept this also.
Under r.7.01 of the Federal Magistrates Court Rules 2001 (Cth), the Court may allow a party to amend a document at any stage on such conditions that it thinks fit. In relation to any amendment resulting in the joinder of additional parties, r.11.02(2) precludes a party “including” a person as a party after a first court date without the leave of the Court. In my opinion, the present application for amendment and joinder should be dealt with as if it were an application for leave under that rule.
When the motion came before me on 11 August 2006, I was concerned whether some of the proposed additional parties would be properly joined, and therefore directed that notice of the interlocutory application should be served on all of the proposed additional parties, before I addressed whether they would be properly joined.
Most of the proposed additional parties have appeared before me today in response to various measures of service effected by the applicant. There are some whom she has not been able to serve, or who have not made an appearance today. However, appearances were made by all of the persons whom I have decided should properly be joined, and their representative did not challenge their joinder. The reasons which I shall give below for refusing leave to join the others apply to the persons who did not appear, as well as those who have appeared.
The Court’s jurisdiction under the Act is governed by the provision of s.46PO(1), (2) and (3):
46POApplication to court if complaint is terminated
(1)If:
(a) a complaint has been terminated by the President under section 46PE or 46PH; and
(b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination;
any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
Note:Part IVA of the Federal Court of Australia Act 1976 allows representative proceedings to be commenced in the Federal Court in certain circumstances.
(2)The application must be made within 28 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.
(3)The unlawful discrimination alleged in the application:
(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
The contention of those of the proposed new respondents who oppose being joined is that they could not be proper respondents to allegations in an application under s.46PO(1) which relies upon the notice of termination identified by the applicant, because they were not “one or more of the respondents to the terminated complaint” within the meaning of s.46PO(1). They argue that the Court has no jurisdiction to entertain the allegations of unlawful discrimination against them which are proposed in the amended application, and therefore should not be required to participate in the proceeding.
In my opinion, the requirement that each respondent to an application under s.46PO must have been a “respondent to the terminated complaint” is a jurisdictional requirement of an application such as is now brought by the applicant. Such appears to have been the opinion of Jarrett FM in Gauci v Kennedy & Anor [2005] FMCA 1505 at [53].
As his Honour also points out, the Court’s jurisdiction in an application under s.46PO is also governed by the requirement that its ambit must accord with the ambit of the terminated complaint in terms of s.46PO(3). The unlawful discrimination must the “the same as” the subject of the terminated claim, or must “arise out of the same” events.
Issues under s.46PO(3) as to the ambit of the applicant’s allegations may arise in the present application. However, I have not found it necessary to enter into an examination of these issues when deciding the present questions of joinder of parties. They can be left to a later debate, once I have resolved who were the “respondents to the terminated complaint”, so as to be properly joined to the present application.
The significance of the jurisdictional limits on this Court which refer to the ambit of the terminated complaint and the parties to the terminated complaint, appears from the scheme of the Act. It sets up a process whereby complaints are initially assessed and investigated administratively. Even at that stage, the Act requires the persons who are specifically affected to be identified as parties to the administrative proceeding. The Act describes the persons against whom complaints are made as “respondents” from the inception of the proceeding (see the definition of “complaint” and “respondent” in s.3).
Moreover, the Commission itself is given a function of determining who are respondents to the complaint. This appears, in particular, from s.46PF(3):
46PFInquiry by President
…
(3)With the leave of the President, any complainant or respondent may amend the complaint to add, as a respondent, a person who is alleged to have done the alleged unlawful discrimination.
Note:In some cases, a person is regarded as having done unlawful discrimination by being treated as responsible for the acts and omissions of another person. See sections 56 and 57 of the Age Discrimination Act 2004, sections 122 and 123 of the Disability Discrimination Act 1992, sections 18A and 18E of the Racial Discrimination Act 1975 and sections 105, 106 and 107 of the Sex Discrimination Act 1984.
A contention made on behalf of the Commonwealth bodies appearing before me today was that a determination by the President as to who was a respondent to the terminated complaint is conclusive of that fact when determining this Court’s jurisdiction under s.46PO. They argue that in the present case the President’s determination, as to who were respondents to the complaint, appears from the list of parties on the notice of termination. If that contention is correct, then it is plain that the proposed additional parties, other than those whom are so identified, may not be joined as respondents to the application to the Court.
I am doubtful whether this is the correct interpretation of s.46PO(1). I was not referred to any authority on the point, and have not conducted my own researches. However, I am inclined to think that the Act intends that the Court should determine its jurisdiction in relation to proposed respondents, by itself forming an opinion as to who were “the respondents to the terminated complaint”. This interpretation might better accord with the judicial function conferred on the Court.
If the Court must decide the issue for itself as a question of jurisdictional fact, the course of correspondence between the Commission and the applicant and other parties when the matter was before the Commission, and the Commission’s notice of termination and its reasons, would provide the relevant evidence upon which the Court should arrive at its conclusion as to who were the respondents to the terminated complaint. In the present case, after examining the complaints which were terminated by the Commission, I have concluded that the Commission correctly identified the respondents to the terminated complaint in its list on the notice of termination. I therefore do not need to resolve the issue of construction.
The applicant referred me to Travers v State of New South Wales [2000] FCA 1565, where Lehane J said:
[8]No doubt it was intended that a terminated complaint should not be used to launch an application to the Court, effectively bypassing the procedures provided by the legislation, alleging discrimination other than that of which a complaint had been made or covering a course of conduct substantially wider – or beginning substantially earlier – than that initially complained of. At the same time, it must be recognised that the terms of s 46PO(3) suggest a degree of flexibility (“or the same in substance as”, “or substantially the same”) and a complaint, which usually will not be drawn by a lawyer, should not be construed as if it were a pleading: Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 at 188. Indeed, the initial complaint may be in quite brief and general terms, the detail being elicited in the course of inquiries by the relevant Commissioner: Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90 at 94. It may well be that the ambit of a complaint is to be ascertained, for the purpose of s 46PO(3), not by considering its initial form but by considering the shape which it had assumed at the time of its termination. Counsel for the State contended that the “complaint” to be considered for the purpose of s 46PO(3) in this case comprised the letter of 10 February 1997 and nothing else. Although there is no need to reach a firm conclusion about it, there is in my view much to be said for the applicant’s submission to the contrary.
His Honour’s judgment was directed at how a court should decide the ambit of the terminated complaint, rather than the respondents to the terminated complaint. However, I accept his general point that neither the Commission nor the Court should take a pedantic or technical approach, when identifying the persons against whom an applicant complained and sought remedies in the original complaint made to the Commission. I accept that this might require consideration of the “shape which it assumed at the time of its termination”.
However, the Court should also recognise the policy reflected in the provisions of s.46PO(1), against allowing an applicant to raise allegations which were not part of the original complaint or were not levelled against persons who were called upon to respond to the original complaint. As Lehane J said: “a terminated complaint should not be used to launch an application to the Court, effectively bypassing the procedures provided by the legislation”. Those procedures include a clear indication that the speed of complaint about a person is a significant element in the decision of the Commission on how to deal with the complaint. Thus, s.46PH(1)(b) allows the President to terminate a complaint lodged more than 12 months after the alleged unlawful discrimination took place. The scheme of the Act would be subverted, in my opinion, if complainants were able to raise in the Court old allegations against persons who were not identified in the original complaint as the persons who were the subjects of the complaint.
It is necessary therefore to address the complaint which was terminated by the Commission in the present case, and to consider how the applicant identified the respondents to her complaint.
Some general observations may be made as to the context in which the applicant made her present complaint to the Commission.
First, it is clear from her correspondence with the Commission that, apart from her present complaint, she had made other complaints of unlawful discrimination which either had been considered, or were being considered, by the Commission at the time of this complaint. References to her other complaints can also be found in other proceedings in this Court.
Secondly, the applicant has legal qualifications and experience, and the language she has used in her complaint should be understood in that light. It is clear that she was aware of the statutory terminology of “respondent to a complaint”, since at various points in her complaint she specifically named persons as “respondents”.
Her original letter of 26 September 2005 said:
I am complaining about:
(i)Staff of the Federal Court of Australia; and
(ii) Andras Markus, of the Australia Government Solicitor.
Her letter then identified particular members of the Federal Court staff, whose conduct the applicant claimed had constituted breaches of human rights and anti‑discrimination legislation. She said that she had observed their conduct in the course of her dealing with the Federal Court Registry during litigation in which she was involved in the Federal Court. The various incidents of which she complained had involved, in particular, situations where people placed pens in their mouths or in the vicinity of their face. Her complaint also included similar actions by three justices of the Federal Court, and a solicitor employed by the Australian Government Solicitor who had been acting in the litigation.
Her initial complaint was further explained in a letter dated 7 November 2005, which was treated by the Commission as an amendment to the complaint made about the Federal Court staff. This commenced by saying: “I refer to the complaints made against Federal Court staff, and Andras Markus of the Australian Government Solicitor, dated 26 September 2005”. The letter referred to “the conduct I was subjected to” and identified the provisions of the legislation which were claimed to have been broken.
The letter of 7 November 2005 also referred to other complaints which the applicant had made in relation to Dr Pickles and Dr McMurdo. The letter did not, in my opinion, identify any complaint about those persons as being part of the new complaint, but separately sought further action in relation to the other complaints. The material before me does not explain what has happened in relation to those complaints concerning Drs Pickles and McMurdo, however, I am satisfied that neither of them was a respondent to the terminated complaint which governs jurisdiction in the present application.
Before it had addressed the complaint, the Commission received a third letter from the applicant dated 21 April 2006, which it treated as a further amendment of her complaint about the Federal Court staff. This commenced, with headings, as follows:
Further Submissions – Complainant
The Respondents to Unlawful Discrimination Complaints
The respondents to this complaint are Andras Markus of the Australian Government Solicitor, and the following Federal Court staff: Michael Wall, Gerard English, Juliet Curtin, Kim Lackenby, Michael Packer and John Petkovshek. There is one other, male, member of staff whose name I do not know, who has also engaged in the conduct the subject of complaint.
I wish to add a further respondent, the State of New South Wales. I believe that the NSW Dept of Health, and possibly other state bodies such as the Dept of Community Services, have and are acting in ways which are of direct relevance to these complaints and which bring them within the jurisdiction of HREOC. I also wish to add as a respondent the Commonwealth Department of Families, Community Services and Indigenous Affairs (DFaCSIA) to this complaint, and CRS Australia.
The letter then, under a heading: “The Conduct the Subject of Complaint”, said: “the conduct of which I am complaining is the placing of pens in the mouth. … The conduct of which I complain began fairly soon after I filed a Notice of Appeal in [file number] in the Federal Court. I recall going to the Registry Counter at level 16 …”. The applicant then recounted various observations of Federal Court staff, of which she complained, and continued:
I have never understood myself, prior to 2005, to have been the intended ‘target’ of this conduct. Furthermore, I do not know why this phenomenon emerged in 2005, and I do not know why, prior to 2005, anyone would seek to target me in this way.
The applicant then, over many pages, narrated a personal history going back many years. She explained how, in retrospect, she remembered similar incidents to those which she claimed to have observed in the Federal Court staff after 2004. This narrative made reference to named people with whom she had worked at the Social Security Appeals Tribunal in 1996, at Centrelink in 1998, and at the Macarthur Legal Centre in 2001, and whom she recalled placing pens in their mouths in her presence. She said that, at the time, she did not “understand this to be aimed at me”. She said that she also remembered such incidents occurring in 2001 when she was seeking legal advice from lawyers at Phillips Fox.
At the bottom of page 8 of the letter the applicant said:
It is apparent to me that if by behaving in this way the respondents to this complaint wish to point to an impairment, such as a paranoid personality disorder, schizophrenia, a mood disorder, or any other condition, they will require an admissible medico‑legal report. I have none of these conditions, nor any other illness or disorder. The conduct that I have been exposed to since 2005 has been unmistakeably aimed at me, and impossible to not notice. It has been unnatural and odd. I have felt very upset, distressed, and offended. I have, as can be seen, complained.
If I had had any reason to think or feel that any conduct occurring prior to 2005 was done or engaged in, in relation to me, whether noticeable, obvious and blatant, or not, I would most certainly have made formal complaints. I have never tolerated being treated in this fashion. I am an assertive, intelligent woman. I don’t allow people to do things and not complain.
I have never been treated like this by friends or relatives. I have never been exposed to this or any other offensive conduct in my social life along these lines. The one occasion that unpleasantness along these lines made an appearance was in late 2004, when the father of a close friend made some questionable comments very audibly and in an unpleasant tone during a phone call with the friend (comments were very loud background noise), and I reacted.
The applicant’s letter then made various submissions about why the conduct that she complained about was in breach of provisions of human rights and anti‑discrimination legislation, and was unwelcome and distressing to her.
The letter then explained why the State of New South Wales, the Commonwealth Department of Families, Community Services and Indigenous Affairs, and CRS Australia were appropriately joined as respondents to the complaint. It is not appropriate at this point in the litigation for me to analyse the reasoning of this part of her complaint, since it is not in dispute that those bodies were respondents to the complaint terminated by the Commission. However, I note that this part of the letter includes statements such as:
I contend that the State of New South Wales is at least in part responsible for the type of programme that is in place in relation to this conduct, and is thus liable for the sex discrimination that occurs … As indicated, my contention is that the conduct the subject of this complaint is occurring as part of a DSA programme, that may be a Commonwealth‑State programme, in all likelihood involving Commonwealth funded services provided under the DSA, by Commonwealth or State ….
The applicant at page 19 again used the term “the respondents” when saying:
The problem for the respondents is that it is very obvious that they have, indeed, imputed to me psychiatric impairments. They do not wish to acknowledge this as they cannot justify on medical or legal grounds having done so. They must provide an admissible medico‑legal report, or cease all services, treatment, and programmes immediately, and apologise. Without an admissible medico‑legal report, the respondents are liable, as indicated, under the DDA and other anti‑discrimination legislation (SDA). The respondents cannot, when challenged, claim that I have an impairment and satisfy the requirements of s8 or s18 of the DSA, without providing an admissible medico‑legal report. They are being challenged. See Minns v State of New South Wales [2002] FMCA 60 at paras 182, 185 and 190; Rana v Flinders University of SA [2005] FMCA 1473 at paras 62 and 64 (the person who alleges the existence of a disability must prove their case by admissible medico‑legal evidence). I request that all previous references by me to the case of Tate v Rafin be removed.
There is a real need for HREOC, as an independent organisation, to point this out to the respondents, and to attempt to conciliate this complaint and arrange for a conciliation conference.
The letter then further addressed particular aspects of the conduct of the identified Federal Court staff and Mr Markus.
In my opinion, it is clear that the whole body of the applicant’s narrative and submissions in this letter was addressed to the Commission with the purpose of explaining to the Commission why the conduct of the persons she referred to as “the respondents” was in breach of the Sex Discrimination Act 1984 (Cth) and the Disability Discrimination Act 1992 (Cth). In my opinion, the persons she identified as respondents to her complaint were the identified members and staff of the Federal Court and Mr Markus, and no other persons. It was only these persons against whom she sought remedies for her recent experiences in the course of her Federal Court litigation.
Having fully considered all the documents which constituted the applicant’s complaint to the Commission, and taking into account all the submissions of the applicant today, I find that her complaint identified in terms and in substance as “the respondents” to her complaint, only the persons which were identified as such by the Commission in the list which heads its notice of termination.
I reject the argument of the applicant that her references to other individuals in the course of her narrative, in which she recalled conduct of a similar nature as that of her named “respondents”, presented these other persons to the Commission as respondents against whom she sought remedies from the Commission or, if necessary, this Court. In my opinion, this narrative did no more than provide the Commission with background to the applicant’s complaint about recent events in the Federal Court.
I therefore am satisfied that it would not be appropriate to grant leave to join as respondents to the present application any persons other than those identified by the Commission as respondents to the terminated complaint. I refuse the application for leave under r.11.02(2) or any other relevant rule in relation to their proposed joinder.
Within some of the documents filed by the applicant there are suggestions that this Court might have a jurisdiction broader than that conferred by s.46PO to grant remedies in relation to her complaints about other persons. There might implicitly be requests that I should allow amendments to the application which would allow these complaints to be pursued under unparticularised heads of associated jurisdiction (c.f. s.18 of the Federal Magistrates Act 1999 (Cth)). There are also submissions that I should join to this proceeding other proceedings pending in this Court, which concern related complaints or events.
However, I have decided that I should exercise all relevant procedural discretions, so as to confine the present proceeding to the application brought under s.46PO(1) in relation to the terminated complaint which is the subject of the notice of termination dated 30 May 2006. I consider that this proceeding should not be extended nor broadened to include any other claims or causes of action which the applicant might have against people who were not respondents to the terminated complaint.
I have taken into account the applicant’s concern that she is embroiled in litigation which is assuming a complexity which she would hope to avoid. However, I must also consider the interests of the parties to the present proceeding who were respondents to the terminated complaint, and also the broader interests of the administration of justice. Taking into account the nature of the allegations made by the applicant, and the persons currently involved as respondents, in my opinion it is in the interests of justice that the present matter should be brought on for hearing and determined without any avoidable delay or complexity. I shall discuss with the parties appropriate directions to allow this to occur.
Postscript
After I delivered the above judgment and made procedural directions for a timetable agreed by the parties, the applicant made an oral application for an order that I should restrict publication of information, in particular, by giving anonymity to her name in court documents including this judgment. She had not previously sought such an order, and did not present any evidence in support. She referred to her concern that publishing details of her claims, such as I have included in the above judgment, might cause her distress and embarrassment and might jeopardise her employment prospects. I indicated that I would consider her application when I was revising my judgment, and allowed the parties to file lists of authorities relevant to the question.
Although the Court has such powers as are implicit in its function as a federal court of record established under Chapter III of the Constitution, it is not given the stature of a “superior court” (see s.8(1) of the Federal Magistrates Act 1999 (Cth)). However, it has a power to control publication of its proceedings under s.61. This allows it to “make such order forbidding or restricting” the publication of particular evidence or information, including the name of a party, “as appears to the Federal Magistrates Court to be necessary in order to prevent prejudice to: (f) the administration of justice; or (g) the security of the Commonwealth”.
In the present case, therefore, it is necessary for me to be satisfied that an anonymity order is “necessary” for the purpose of “prevent[ing] prejudice to the administration of justice”. The same language governs the Federal Court’s power conferred by s.50 of the Federal Court of Australia Act 1976 (Cth), and it is appropriate that I should take guidance from authorities on that provision. The applicant referred me to the discussion in Australian Broadcasting Commission v Parish (1980) 29 ALR 228 (“ABC v Parish”).
This, and more recent cases, were discussed in the Full Court in Herald & Weekly Times Ltd v Williams (2003) 130 FCR 435. Merkel J, with whom Finn and Stone JJ agreed, emphasised that the power is concerned with “prejudice in respect of the exercise by the court of the judicial power of the Commonwealth”, in a context where “the fact that courts of law are held openly and not in secret is an essential aspect of their character” (quoting Gibbs J in Russell v Russell (1976) 134 CLR 495 at 520). Merkel J cited authority which has held that the principle of open justice contemplates the possibility that a litigant might become the subject of embarrassing and damaging publicity. He said at [36]: “a different situation might arise, for example, if the embarrassment or damage that publicity might occasion is such that it would prevent or deter a person from prosecuting or defending a proceeding in the court, or ‘if there was a real risk as opposed to a remote possibility that this would occur’” (citing Johnston v Cameron (2002) 124 FCR 160 at 180).
The applicant also cited John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 at 141, where Kirby P referred to “special circumstances where publicity would prejudice the interests of justice”. Illustrating this, he said:
If the very openness of court proceedings would destroy the attainment of justice in the particular case (as by vindicating the activities of the blackmailer) or discourage its attainment in cases generally (as by frightening off blackmail victims or informers) or would derogate from even more urgent considerations of public interest (as by endangering national security) the rule of openness must be modified to meet the exigencies of the particular case.
The applicant’s claims in the present case do not have as their subject matter confidential dealings, nor do they involve any matter whose privacy or secrecy must be preserved in the interests of the administration of justice. The remedies sought by the applicant are unaffected by the possibility of publicity, at least not to the disadvantage of the applicant. If her claims are upheld, then she will have been found to have suffered injury by being “victimised” and imputed with disabilities which she denies. It is difficult to see how the achievement of this outcome would be prejudiced by reason of the application proceeding in public.
As in many human rights cases in this Court, the applicant seeks vindication in a judicial determination of her claims that she has suffered infringements of her human rights. In my opinion, both the general and particular interests of justice suggest that generally this should be performed in public, once the complaint has passed from the administrative forum of the Human Rights and Equal Opportunities Commission.
The applicant has not claimed, and I would not find, that she would not have brought the application to the Court without the protection of anonymity. I do not consider that she has established a “real risk” that persons in her situation would be prevented or deterred from seeking the vindication of their human rights by reason of embarrassment or distress resulting from publication of her name. I do not see a relevant analogy with the situation of a blackmail victim.
I have given careful consideration to the implications of all the applicant’s other litigation in this and other courts. I note that the applicant has not been protected from embarrassment by anonymity in a large number of proceedings, and that in at least one an application for anonymity has been refused (see Lawrance v President, Administrative Appeals Tribunal (2006) 42 AAR 552 at [169]‑[173]).
I have also given consideration to the official and professional positions held by some of the respondents. I note that none of them has sought anonymity when meeting the claims made against them by the applicant. The interests of justice encompass consideration of their right to be vindicated by a public acquittal from the claims made by the applicant, if such should be the outcome. Regardless of which side in this litigation may succeed, I consider that the nature of the claims made by the applicant, and the identities of the respondents, gives rise to a particular public interest in giving weight to the principle of open justice in the present case.
I accept that the applicant is genuinely concerned that the publication of her name in this judgment, and in the proceeding generally, may give rise to embarrassment, distress and even financial and emotional damage. I also accept that this may occur at a heightened level if, contrary to the applicant’s expectations, she fails to establish her claims against the respondents. However, after performing the weighing exercise identified in ABC v Parish in the light of the material before me, I have not been satisfied under the test provided in s.61 that anonymity for the applicant is “necessary” in the present proceeding.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 14 December 2006
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