Lejmanoski v The University of Western Australia
[2013] FMCA 75
•28 March 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LEJMANOSKI v THE UNIVERSITY OF WESTERN AUSTRALIA | [2013] FMCA 75 |
| INDUSTRIAL LAW – General protections claim – workplace rights – university professorial employee – prior settlement of earlier equal opportunity claims – whether subsequent actions in alleged breach of settlement deed also in breach of workplace rights – whether prejudicial alteration of position – whether adverse action – whether threat to injure in employment. |
| PRACTICE AND PROCEDURE – Suppression and non-publication orders sought – access to justice – principles. |
| Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth), sch.2 Access to Justice (Federal Jurisdiction) Amendment Bill 2011 (Cth) Evidence Act 1995 (Cth), s.131 Equal Opportunity Act 1984 (WA), ss.80, 84, 88, 91, 92 Fair Work Act 2009 (Cth), ss.340(1), 341(1) and (2), 342(1), 545(1) and (2)(b), 546 Federal Court of Australia Act 1976 (Cth), ss.17 and 50 (repealed), Part VAA Federal Magistrates Act 1999 (Cth), ss.13, 16, 61 (repealed), 88A, 88B, 88E, 88F, 88G, 88K, Part 6A Federal Magistrates Court Rules 2001 (Cth), r.4.05(2)(b) and (c) University of Western Australia Academic Staff Agreement 2010 cll.44-46, 57 |
| Australian Competition and Consumer Commission v Air New Zealand Limited (No. 3) (2012) FCA 1430 Herald & Weekly Times Ltd v Williams & Ors (2003) 130 FCR 435; [2003] FCAFC 217 Hogan v Australian Crime Commission & Ors (2010) 240 CLR 651; [2010] HCA 21 John Fairfax Group Pty Ltd (Receivers and Managers Appointed) & Anor v Local Court of New South Wales & Ors (1991) 26 NSWLR 131 Rinehart v Welker & Ors [2011] NSWCA 345 State Rail Authority of New South Wales v Smith (1998) 45 NSWLR 382 Suh & Ors v Minister for Immigration & Citizenship & Anor (2009) 175 FCR 515; [2009] FCAFC 42 Welker & Ors v Rinehart [2011] NSWSC 1094 Wingecarribee Shire Council v Lehman Brothers Australia Ltd (in liq) (No. 6) [2011] FCA 350 |
| Commonwealth, Parliamentary Debates, Hansard, House of Representatives, 23 November 2011, 13553-13554 (Brendan O’Connor, Minister for Privacy and Freedom of Information, Home Affairs, and Justice) Explanatory Memorandum, Access to Justice (Federal Jurisdiction) Amendment Bill 2011 (Cth) 19-23 |
| Applicant: | LENA LEJMANOSKI |
| Respondent: | THE UNIVERSITY OF WESTERN AUSTRALIA |
| File Number: | PEG 9 of 2013 |
| Judgment of: | Lucev FM |
| Hearing date: | 13 February 2013 |
| Date of Last Submission: | 13 February 2013 |
| Delivered at: | Perth |
| Delivered on: | 28 March 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Jackson |
| Solicitors for the Applicant: | DLA Piper Australia |
| Counsel for the Respondent: | Mr R L Hooker |
| Solicitors for the Respondent: | Office of General Counsel, University of Western Australia |
ORDERS
The applicant’s application for suppression and non-publication orders is dismissed.
The orders of 15 January 2013 be:
a)varied by deleting “s.61” in order 2(c) and inserting in lieu thereof “s.88G”; and
b)set aside.
The matter is otherwise adjourned to a further directions hearing at 9.45am on 11 April 2013.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 9 of 2013
| LENA LEJMANOSKI |
Applicant
And
| THE UNIVERSITY OF WESTERN AUSTRALIA |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, Ms Lejmanoski, is an Associate Professor in the School of Dentistry with the respondent, the University of Western Australia (“UWA”).
The Application is made in the Fair Work Division of this Court. Associate Professor Lejmanoski has filed both a Form 4 claim under the Fair Work Act 2009 (Cth) (“FW Act”) and a detailed Statement of Claim.
The Statement of Claim sets out a prayer for relief by way of:
a)declarations under s.16 of the Federal Magistrates Act 1999 (Cth) (“FM Act”), alternatively s.545(1) of the FW Act, alleging that UWA has contravened the provisions of the FW Act in relation to:
i)having a workplace right;
ii)having, or not having, exercised a workplace right; or
iii)proposing or proposing not to exercise a workplace right; and
iv)the prevention of the exercise of a workplace right,
under s.340(1)(a) and (b) of the FW Act;
b)orders for compensation for distress and humiliation under s.545(2)(b) of the FW Act;
c)penalties under s.546 of the FW Act; and
d)interest, such further or other relief as the Court deems fit, and costs.
Associate Professor Lejmanoski, without objection from UWA, now seeks orders that:
a)the fact of the proceedings, the Application as filed, and all other documents that are filed in these proceedings, remain confidential between the parties, and are not to be disclosed to any third party (save and except for each of the parties’ solicitors);
b)these orders and any subsequent orders shall not be made publically available; and
c)any hearing in these proceedings shall be kept strictly confidential, and not open to the public to attend.
Background – as alleged in the Statement of Claim
The relevant background history of the matter is, for present purposes, sufficiently set out in the allegations made in the Statement of Claim.
May 2009 to 11 November 2011
The Statement of Claim begins by setting out the alleged history from May 2009 to 11 November 2011 as follows:
a)in about May 2009 Associate Professor Lejmanoski alleged that she was subject to unlawful sexual harassment by her immediate superior, Professor Ichim (“Internal Sexual Harassment Complaint”);
b)Associate Professor Lejmanoski was removed from her position as fifth year coordinator at a meeting with the Head of the School of Dentistry, Professor Smith, on 29 October 2009;
c)Associate Professor Lejmanoski made allegations regarding the conduct of Professor Ichim in an email to Professor Smith on 8 November 2009, and repeated those allegations in a meeting with Professor Smith on 9 November 2009 (“Internal Complaint”), following which Professor Smith demanded a retraction or particularisation of the allegations;
d)on 26 April 2010 an allegation was made against Associate Professor Lejmanoski by Professor Smith in relation to an alleged failure to inform Professor Smith concerning the details of a Visiting Fellow;
e)Associate Professor Lejmanoski’s right to private practice at the Oral Health Centre of Western Australia was suspended by Professor Smith on 17 July 2010, to take effect from 31 December 2010;
f)on 23 July 2010, having requested a minor change to workload relating to two sessions only, Associate Professor Lejmanoski was informed that Professor Smith had determined to transfer all her educational, administrative, lecture and case presentation preparation, lectures and tutorial, committee work and any other tasks, except clinical tutoring, to other staff;
g)a further allegation of misconduct against Associate Professor Lejmanoski concerning examination papers was made by Professor Smith on 10 August 2010;
h)Associate Professor Lejmanoski’s solicitors sent a letter of demand dated 17 September 2010 to UWA (“the Letter”), demanding, amongst other things, that:
i)UWA protect Associate Professor Lejmanoski from unlawful sexual harassment and victimisation;
ii)Associate Professor Lejmanoski’s right to private practice be reinstated; and
iii)Associate Professor Lejmanoski be reinstated to her position as Fifth Year Coordinator;
i)on 7 October 2010 Associate Professor Lejmanoski filed a complaint against UWA in the Western Australian Equal Opportunity Commission (“WA EOC”), a statutory Commission established under the Equal Opportunity Act 1984 (WA) (“the WA EO Act”), alleging sexual harassment and victimisation, including in relation to the conduct of Professor Ichim (“the EOC Complaint”);
j)on 31 October 2011 the School of Dentistry’s coordination committee purported to approve a list of unit coordinators for the 2013 year, prior to any consultation taking place;
k)on 2 November 2011 UWA requested that a 15 minute meeting between Professor Smith and the School of Dentistry’s manager for preliminary discussions into Associate Professor Lejmanoski’s role in 2013 be scheduled, but the meeting did not take place; and
l)on 11 November 2011 a Deed of Settlement (“Deed”) and a Memorandum of Understanding (“MOU”) were executed by Associate Professor Lejmanoski and UWA purporting to settle all of Associate Professor Lejmanoski’s claims, and releasing UWA from Associate Professor Lejmanoski’s claims. A copy of the Deed, the MOU and the Letter are annexed to an affidavit affirmed by Associate Professor Lejmanoski on 21 January 2013 (“the Affidavit”).
The terms of the Deed provided, amongst other things, that:
a)under clause 3.1, Associate Professor Lejmanoski agrees to accept a settlement amount “in full and final settlement of the Proceedings and the Dispute.” The “Proceedings” are defined in clause 1.1 of the Deed to mean proceedings commenced by Associate Professor Lejmanoski under the University of Western Australia Academic Staff Agreement 2010 (“Academic Staff Agreement”) and the EOC Complaint, specifically referring to complaint CIC/10/0521. The Dispute is also defined in clause 1.1 of the Deed to mean “the dispute in relation to the matters described in the [L]etter”;
b)under clause 4 the parties enter into mutual releases of “all present or future Claims arising out of, or in connection with, or in any way related to the Dispute, the Proceedings or the subject matter of the Dispute or the Proceedings”: clause 4.1, including “Claims relating to the subject matter of the Dispute or the Proceedings that may be discovered after execution” of the Deed: clause 4.2; and provide that the Deed may be pleaded as a bar to any suit, action or legal proceeding between the parties in respect of such claims: clause 4.3;
c)in clause 1.1 of the Deed “Claims” is defined to include “any and all claims, sums of money, actions, suits, causes of action, proceedings, allegations, assertions, exertions, accounts, liability, losses, assessments, demands, costs, expenses, notices, demands or any other type of claim however arising whether past, present or future, fixed or unascertained, actual or contingent, known (actually or constructively) or unknown”;
d)under clause 6, as follows:
The parties agree to keep confidential this deed and shall not disclose to any person, including, but limited to any media sources, agencies or representatives, information as to the terms of this deed without the prior written consent of the other Party except in relation to any information:
6.1.1 Required to be disclosed in order to obtain professional advice; or
6.1.2Required to be disclosed to a Court or otherwise by law;
and the Parties will take all necessary precautions to ensure that all information which is released in accordance with this condition is treated as confidential by the person to whom it is disclosed and is not disclosed by that person to any other person without the prior written consent of the parties.
6.2 If Lejmanoski breaches the obligations in clause 6.1 of this deed, Lejmanoski agrees to reimburse UWA the Settlement Amount and to indemnify UWA for any damage UWA might suffer as a result of Lejmanoski breaching the obligations in clause 6.1.
The terms of the MOU provided, amongst other things:
a)under clause 13 – that should there be any proposed change to Associate Professor Lejmanoski’s duties after semester 1, 2011 that UWA would engage in appropriate consultation and comply with all requirements under the Academic Staff Agreement and all relevant UWA policies;
b)under clause 15.1 – that from 2013 UWA undertook to reappoint Associate Professor Lejmanoski to duties which were commensurate with her seniority in the types of duties she had performed in the past;
c)under clause 15.2 – that UWA undertook that the School of Dentistry Executive would consider Associate Professor Lejmanoski for appointment to the role of final year coordinator under the 2013 curriculum for the new degree of Doctor of Dental Medicine (“DMD”); and
d)further, under clause 15.2 – that UWA undertook that neither Professor Smith nor Professor Ichim would participate in the decision-making process for the potential appointment of Associate Professor Lejmanoski as the final year coordinator for the DMD.
After the Deed was executed
The Statement of Claim continues by asserting that after the Deed and MOU were executed there were a number of alleged events as follows:
a)on 22 November 2011 Associate Professor Lejmanoski was assigned the role of a first year unit coordinator in the DMD to commence in 2013, which was one of a number of first year unit coordinator roles. Other staff members were appointed to the roles of unit coordinators for higher new units from second year to the fifth and final year of the DMD. Associate Professor Lejmanoski considers this to be a demotion as she had previously been the fifth year coordinator in the former degree structure with responsibility for coordinating all final year units, whereas the role of first year unit coordinator was required to report to an overall first year coordinator for the DMD who had responsibility for coordinating all first year units;
b)the School of Dentistry’s manager informed Associate Professor Lejmanoski on 2 December 2011 that an application by her to be allocated an alternative role had been denied, without offering any reasons for the denial;
c)UWA put an ultimatum to Associate Professor Lejmanoski on or about 2 December 2011 requiring her to elect as to whether or not she would take up the role of a First Year Unit Coordinator;
d)Associate Professor Lejmanoski took issue with the lack of consultation in the process leading to the offer of the role of first year coordinator and the ultimatum referred to above, and did so through her solicitors, following which she was offered a second year unit coordinator role in addition to the first year unit coordinator role, on or about 7 December 2011;
e)on or about 12 December 2011 Associate Professor Lejmanoski rejected UWA’s offer set out above on the basis, amongst other things, of workload; and
f)from on or about 22 February 2012 Associate Professor Lejmanoski remained allocated only for a first year unit coordinator role in the DMD for 2013.
Associate Professor Lejmanoski alleges the following breaches of the Deed arising from the terms of the MOU:
a)of clause 13 – a failure to properly consult her in relation to proposed changes to her duties as they existed after semester one 2011;
b)of clause 15.1 – a failure to reappoint her to a role commensurate with her seniority and the type of duties she previously performed; and
c)of clause 15.2:
i)a failure to properly consider her for appointment to the role of final year coordinator under the new 2013 DMD curriculum; and
ii)involving, amongst others, Professor Smith in the consultation and appointment process relating to the rejection of her preferred alternative role, and her ultimate allocation to the role of first year unit coordinator in the DMD for 2013.
Associate Professor Lejmanoski pleads that she had the following workplace rights for the purposes of s.341 of the FW Act:
a)the Academic Staff Agreement, including clauses 44-46, and the dispute settlement procedure under clauses 44-46;
b)the WA EO Act;
c)various policies of UWA, including policies on equal opportunity, sexual harassment and affirmative action, as well as codes of ethics and conduct and guidelines for conduct in the workplace; and
d)the Deed, which established processes for the purposes of s.341(2)(j) and (k) of the FW Act.
Associate Professor Lejmanoski says that she exercised, or alternatively proposed to exercise, her workplace rights for the purposes of s.340 of the FW Act by making the Internal Sexual Harassment Complaint and the Internal Complaint pursuant to clause 57 of the Academic Staff Agreement which prohibits sexual harassment, and by taking proceedings in the WA EOC, both of which constituted the exercise of a workplace right under s.340(1)(a)(ii) of the FW Act.
Associate Professor Lejmanoski claims that the conduct alleged following the execution of the Deed amounted to UWA:
a)altering the Associate Professor’s position of employment to her prejudice;
b)taking adverse action against the Associate Professor because of her workplace rights; and
c)further or in the alternative, threatening to engage in conduct that constituted adverse action within the meaning of s.342(1) Item 1(b) of the FW Act, in that UWA threatened to injure the Associate Professor in her employment.
Evidence
In the Affidavit in support of the suppression and non-publication orders Associate Professor Lejmanoski asserts that:
a)as Head of School, the director of OHCWA and as a full professor, Professor Smith is her superior in the academic hierarchy and has the power to make directives that affect the way that she is required to perform her duties;
b)Professor Ichim is the Director of Undergraduate Studies and also the director of the DMD. In those positions, and as a full professor, Professor Ichim is also Associate Professor Lejmanoski’s superior in the academic hierarchy with the power to make directives that affect the way that she is required to perform her duties;
c)in 2010 she made the EOC Complaint as a consequence of alleged sexual harassment by Professor Ichim, and Professor Smith’s punitive behaviour towards her after she had complained about Professor Ichim’s behaviour, with the complaint being made against UWA on the basis of its vicarious liability for its employees, Professor Ichim and Professor Smith;
d)the EOC Complaint settled, and the settlement terms were recorded in the Deed;
e)she has been informed by her lawyers that there needs to be some reference to the Deed and its contents in her application to the Court;
f)the Deed contains the confidentiality clause set out at para.7(d) above that imposes confidentiality requirements on her, and imposes penalties for breach of the confidentiality requirements;
g)she does not want to face any accusation by UWA that she breached the confidentiality clause in the Deed;
h)she needs to work alongside Professor Smith and Professor Ichim, who are superior to her in the academic hierarchy, and who can make decisions that affect her employment, and that she does not want to be subject to any detrimental action by them that might be taken in reaction to any publicity arising from this claim; and
i)her priority has always been the proper discharge of her professional responsibilities, and it would negatively affect her ability to discharge her role if she was subject to discussion or innuendo in the workplace arising from these proceedings, and that she wants to avoid being in a position where any person would seek to deter her from taking these proceedings because of the need to make reference to the Deed, or as a result of publicity about the proceedings.
Associate Professor Lejmanoski’s submissions
Associate Professor Lejmanoski submits that:
a)UWA has no objection to the orders sought and does not argue that there is any prejudice to it arising from the orders sought;
b)the administration of justice would be undermined if the confidentiality deed which led to the settlement of claims was subsequently made public;
c)she does not seek to go behind the Deed, but argues, amongst other things, breach of the terms of the Deed by UWA after execution, which makes it necessary to make reference to the existence of the Deed, and to certain relevant terms, in order to make that case;
d)the administration of justice would be prejudiced if she were exposed to the risk that an attempt could be made by UWA to deter her from seeking to vindicate statutory rights (such as those set out in the FW Act which found the claim) on the basis of the confidentiality of the Deed, when it is breach of that Deed by UWA after execution which constitutes part of the current application, so that disclosure of the Deed would give rise to such a risk, and that this would not do justice between the parties;
e)the administration of justice would be prejudiced if, as a result of publicity arising from these proceedings, as an ongoing employee of UWA, she was subject to:
i)any detrimental action by any other employee named in the proceedings, and in particular those employees, Professors Smith and Ichim, who are her superiors in the academic hierarchy; and
ii)workplace discussion or innuendo arising from the public nature of these proceedings as such behaviour would adversely impact her capacity to discharge her functions;
and it is her professional standing, employment position and future career path which she seeks to protect by initiating these proceedings, and to expose her to such a risk would not be to do justice between the parties;
f)from 2013 the School of Dentistry at UWA is introducing the DMD, and Professor Ichim is the director of the DMD programme and her superior in the academic hierarchy, and has the power to make directives that affect the way in which she is required to perform her duties. The publication of the proceedings may affect her future career prospects in respect of the DMD programme; and
g)to the extent that the Court might be minded to make orders in narrower terms than those sought on a permanent basis, the Court should, for the reasons set out above:
i)require all documents filed in the proceedings to be kept confidential to the parties, and not be disclosed to any third party, save and except the parties’ solicitors; and
ii)require that any reference in any public hearing to the existence of the Deed, and any of its terms, be kept confidential and not be disclosed to any third party, save and except the parties’ solicitors.
UWA’s submissions
UWA does not contest that the new Part 6A of the FM Act, read with s.13(7) of the FM Act, empowers the making of the orders sought by Associate Professor Lejmanoski. UWA says, however, that recognising the existence of the jurisdiction is a distinct step from whether the Court ought to exercise its discretion on a lawful and proper exercise of that jurisdiction. In that context UWA:
a)notes that pursuant to s.88E of the FM Act, it is a mandatory consideration that the Court take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice;
b)further notes that pursuant to s.88K(2) of the FM Act, the Court is to ensure that any order operates for no longer than is reasonably necessary to achieve the purpose for which it is made; and
c)does not concede that any of the matters the subject of Associate Professor Lejmanoski’s affidavit give rise to any potential risk to the administration of justice.
UWA does not take issue with the fact that Associate Professor Lejmanoski ought to, notwithstanding the terms of the Deed, be understood as being allowed to take legal advice, give instructions and proof witnesses in the ordinary manner to allow the proceedings to be stopped.
The law
Legislation
Section 13 of the FM Act (which has its equivalent in s.17 of the Federal Court of Australia Act 1976 (Cth) (“FC Act”)) relevantly provides as follows:
…
(2) The jurisdiction of the Federal Magistrates Court must be exercised in open court. However, this rule does not apply where, as authorised by this Act or another law of the Commonwealth, the jurisdiction of the Federal Magistrates Court is exercised by a Federal Magistrate sitting in Chambers.
…
(7) The Federal Magistrates Court may order the exclusion of the public or of persons specified by the Federal Magistrates Court from a sitting of the Federal Magistrates Court if the Federal Magistrates Court is satisfied that the presence of the public or of those persons, as the case may be, would be:
(a) contrary to the interests of justice; or
(b) prejudicial to the security of the Commonwealth.
Part 6A of the FM Act deals with suppression and non-publication orders. Relevantly, ss.88A, 88B, 88E, 88F, 88G and 88K of the FM Act provide as follows:
In this Part:
88A
"information" includes any document.
"news publisher" means a person engaged in the business of publishing news or a public or community broadcasting service engaged in the publishing of news through a public news medium.
"non-publication order" means an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information).
"party" to a proceeding includes 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.
"publish" means disseminate or provide access to the public or a section of the public by any means, including by:
(a) publication in a book, newspaper, magazine or other written publication; or
(b) broadcast by radio or television; or
(c) public exhibition; or
(d) broadcast or publication by means of the internet.
"suppression order" means an order that prohibits or restricts the disclosure of information (by publication or otherwise).
88B
This Part does not limit or otherwise affect any powers that the Federal Magistrates Court has apart from this Part to regulate its proceedings or to deal with a contempt of the Federal Magistrates Court.
88E
In deciding whether to make a suppression order or non-publication order, the Federal Magistrates Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.
88F
(1) The Federal Magistrates Court may, by making a suppression order or non-publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:
(a) information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Federal Magistrates Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Federal Magistrates Court; or
(b) information that relates to a proceeding before the Federal Magistrates Court and is:
(i) information that comprises evidence or information about evidence; or
(ii) information obtained by the process of discovery; or
(iii) information produced under a subpoena; or
(iv) information lodged with or filed in the Federal Magistrates Court.
(2) The Federal Magistrates Court may make such orders as it thinks appropriate to give effect to an order under subsection (1).
88G
(1) The Federal Magistrates 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.
88K
(1) A suppression order or non-publication order operates for the period decided by the Federal Magistrates Court and specified in the order.
(2) In deciding the period for which an order is to operate, the Federal Magistrates Court is to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made.
(3) The period for which an order operates may be specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event.
Part 6A of the FM Act was introduced as part of reforms effective from 12 December 2012 under the Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth) (“Access to Justice Act”).
Part 6A of the FM Act replaces the now repealed s.61 of the FM Act (which had its equivalent in the now repealed s.50 of the FC Act) which provided as follows:
The Federal Magistrates Court may, at any time during or after the hearing of a proceeding in the Federal Magistrates Court, make such order forbidding or restricting:
(a) the publication of particular evidence; or
(b) the publication of the name of a party or witness; or
(c) the publication of information that is likely to enable the identification of a party or witness; or
(d) access to documents obtained through discovery; or
(e) access to documents produced under a subpoena;
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.
Access to Justice Bill – Second Reading Speech
Minister Brendan O’Connor in the Second Reading Speech for the Access to Justice (Federal Jurisdiction) Amendment Bill 2011 said as follows concerning suppression and non-publication orders:
The bill has several advantages over the current arrangements for the making of suppression orders in the federal courts:
It provides a clearer legislative framework for the grounds on which suppression orders can be made, what information they can cover, how long they should last for, how broad they should be and what information such orders should contain, as well as clearer rules about standing.
It clearly preserves the importance of the principle of open justice, and provides that suppression orders can only be made where such orders are necessary, consistent with recent High Court jurisprudence. This bill has been amended from the model law to more clearly define the grounds which empower the courts to exercise their discretion.
The bill does not include the provision in the SCAG model law that allows a court to grant a suppression order if it is necessary in the public interest for the order to be made. The bill therefore does not broaden the grounds on which suppression orders can be made from those that currently apply.
This bill will provide a more transparent and accountable legislative regime for courts to make suppression orders. By ensuring that courts can only make suppression orders when they are clearly justified – and in as narrow terms as necessary to achieve their purpose – this bill appropriately recognises the fundamental importance that open justice plays in the administration of justice, and ultimately in upholding the rule of law.
See Commonwealth, Parliamentary Debates, Hansard, House of Representatives, 23 November 2011, 13553-13554 (Brendan O’Connor, Minister for Privacy and Freedom of Information, Home Affairs, and Justice)
Access to Justice Bill – Explanatory Memorandum
The Explanatory Memorandum to the Access to Justice (Federal Jurisdiction) Amendment Bill 2011 provides as follows:
Item 7 – Insertion of Part 6A – Suppression and non-publication orders
…
107. …, although the Federal Magistrates Court already has a range of powers to make suppression and non-publication orders, Part 6A will set out more comprehensively in one place when and how such powers can be exercised.
108. The amendments repeal section 61 of the Federal Magistrates Act 1999 (item 6), since similar provisions are contained in the amendments inserted by the Part. While the Court’s more general powers under section 15 of the Federal Magistrates Act 1999 will not be amended by this Bill, those more general powers will no longer be used to prohibit or restrict the publication or other disclosure of information in connection with proceedings (section 88C). The Court’s implied powers to regulate its own proceedings will be unaffected (section 88B).
…
Section 88E – Safeguarding public interest in open justice.
119. Section 88E provides that the Federal Magistrates Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice when deciding whether to make a suppression order or non-publication order. This reinforces that the principle of open justice is fundamentally important and should not be overridden lightly, as recently discussed by the High Court in Hogan v Hinch [2011] HCA 4 and Hogan v Australian Crime Commission [2010] HCA 21. In Particular, his Honour Chief Justice French commented in Hogan v Hinch at paragraph 27 of the judgment that any suppression order powers conferred by statute should be construed so as to minimise their intrusion on the open justice principle. These provisions have been drafted bearing this in mind.
...
Section 88G – Grounds for making an order
129. Section 88G provides that the Federal Magistrates Court can only make suppression or non-publication orders if one of the grounds set out in that section is satisfied. These grounds are that:
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 or witness in criminal proceedings involving an offence with a sexual nature (including an act of indecency)
130. Section 50 of the Federal Court of Australia Act 1976 currently enables suppression or non-publication orders to be made where such an order is necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth. The High Court has recently stressed in Hogan v Australian Crime Commission [2010] HCA 21 that the test that such an order must be ‘necessary’ has a high threshold so that it is insufficient if the making of a suppression order is convenient, reasonable or sensible – it must be necessary. The High Court has also indicated that, if an application is subsequently made to vacate the order, it should be vacated unless the continuation of the order remains necessary under the relevant statutory test.
Cases
A number of cases were referred to by the parties, however, it is necessary to refer to only two cases:
a)Australian Competition and Consumer Commission v Air New Zealand Limited (No. 3) (2012) FCA 1430 (“Air New Zealand”) in which the Federal Court for the first time (and it appears at this stage the only time) has considered the provisions of the new Part VAA of the FC Act (the equivalent of Part 6A of the FM Act); and
b)Hogan v Australian Crime Commission & Ors (2010) 240 CLR 651; [2010] HCA 21 (“Hogan”).
In Air New Zealand the Federal Court observed that:
12 Section 37AE is contained in Division 2 of the new Part VAA. It sets out the principle of open justice in the following terms:
37AE Safeguarding public interest in open justice
In deciding whether to make a suppression order or non publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.
13 This is unlikely to have had any impact upon the substantive operation of the law, the principle of open justice being already well-known.
14 Section 37AF(1) provides:
37AF Power to make orders
(1) The Court may, by making a suppression order or non publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:
(a) information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or
(b) information that relates to a proceeding before the Court and is:
(i) information that comprises evidence or information about evidence; or
(ii) information obtained by the process of discovery; or
(iii) information produced under a subpoena; or
(iv) information lodged with or filed in the Court.
15 Pertinent for present purposes is sub-s (1)(b), which will be enlivened where the information in question comprises evidence or information about evidence.
16 Section 37AG provides as follows:
37AG Grounds for making an order
(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.
17 It will appear therefrom that there are four grounds for the pursuit of a suppression or non-publication order and that, by s 37AG(2), the ground upon which an order is ultimately granted must be set out in the order.
18 Important for present purposes is the wording of s 37AG(1)(a). It will be noted that the wording is essentially identical to the equivalent part of s 50 of the Federal Court of Australia Act, except that the word ‘proper’ now appears in front of the word ‘administration’.
19 I do not think that the word ‘proper’ alters the meaning of the phrase, so that s 37AG(1)(a) reproduces a test with the same content as that which had formerly obtained in relation to s 50. That matters because the meaning and operation of those words have been comprehensively explained by the High Court in Hogan v Australian Crime Commission (2010) 240 CLR 651 at 664 [30]-[33] per curiam. Relevant matters to note about the wording in s 37AG(1)(a) are that, first, before the order is made, it must be ‘necessary’ and that ‘necessary’ is, as was explained in Hogan, a high standard. It is different to ‘convenient, reasonable or sensible’: Hogan at [31].
20 Secondly, the propinquity of the wording in sub-s (a) to the wording in sub-s (b), with its references to ‘prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security’, shows that, as the High Court noted in Hogan at [30], citing the judgment of Bowen CJ in Australian Broadcasting Commission v Parish (1980) 43 FLR 129; [1980] FCA 33 at 133 (FLR), orders of this kind are not concerned with trivialities; that is, they are not lightly to be made.
21 Thirdly, what is involved in assessing whether the order should be made is not a balancing exercise: Hogan at [31]-[32]. It is not a question, on the one hand, of seeking to serve, as best one can, the interests of open justice and, on the other hand, considering the prejudice which may occur if the information is released. The test to be applied is the posing of the question as to whether it is necessary to make the order to prevent prejudice to the proper administration of justice. No balancing exercise is required or permitted.
…
25 Having set those matters out, it does not seem to me that there is any substantive alteration in the way that the relevant principles are to be applied, although I accept that there are some mechanical alterations in the nature of what the order itself must require.
See Air New Zealand at paras.12-21 and 25 per Perram J.
Hogan therefore still represents the applicable law, and it is convenient to set out some passages from Hogan, as follows:
30 As it appears in s 50, “necessary” is a strong word. Hence the point made by Bowen CJ in Australian Broadcasting Commission v Parish,17 that the collocation of necessity to prevent prejudice to the administration of justice and necessity to prevent prejudice to the security of the Commonwealth “suggests Parliament was not dealing with trivialities”. Further, as indicated earlier in these reasons: (a) s 50 is an example of a provision authorising the Federal Court to make orders for the exercise of its jurisdiction other than in open court as mandated by s 17(1); and (b) “the administration of justice” spoken of in s 50 is that involved in the exercise by the Federal Court of the judicial power of the Commonwealth; this is a more specific discipline than broader notions of the public interest.
31 It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some “balancing exercise”, the order appears to have one or more of those characteristics.18
32 If it appears to the Federal Court, on the one hand, to be necessary to make a particular order forbidding or restricting the publication of particular evidence or the name of a party or witness, in order to prevent either species of prejudice identified in s 50, or, on the other hand, that that necessity no longer supports the continuation of such an order, then the power of the Federal Court under s 50 is enlivened. The appearance of the requisite necessity (or supervening cessation of it) having been demonstrated, the court is to implement its conclusion by making or vacating the order. The expression in s 50 “may … make such order” is to be understood in this sense.
33 It may tend to distract attention from the particular terms of s 50 to describe the Federal Court as embarking upon the exercise of a “discretion” when entertaining an application under s 50. Once the court has reached the requisite stage of satisfaction, it would be a misreading of s 50 to treat it as empowering the court nevertheless to refuse to make the order, or to leave in operation the now impugned order. It would, for example, be an odd construction of s 50 which supported the refusal of an order under s 50 notwithstanding that it appeared to the court to be necessary to make an order to prevent prejudice to the security of the Commonwealth.
See Hogan CLR at 664 per French CJ, Gummow, Hayne, Heydon and Kiefel JJ; HCA at paras.30-33 per French CJ, Gummow, Hayne, Heydon and Kiefel JJ.
The High Court went on to further observe that:
42 However, there should be a different outcome where a relevant s 50 order remains in force or should not have been vacated. The administration of justice by the Federal Court, which is the focus of s 50, certainly includes not only the generally recognised interest in open justice openly arrived at which is reinforced by the terms of s 17(1), but also restraints upon disclosure where this would prejudice the proper exercise of its adjudicative function. Bowen CJ pointed this out in Australian Broadcasting Commission v Parish. His Honour went on to describe the litigation in Parish as analogous to a case where confidential information "is the subject matter of the proceedings"; he concluded that it was in the interests of justice that the processes for determination of those very proceedings not destroy or seriously depreciate the value of that subject matter.
43 That is not this case. Nor, contrary to the appellant's submissions, does it provide a fairly close analogy to this case. The placing of material in evidence, even on the faith of what for the time being would be a restriction imposed by a s 50 order, is a matter of forensic decision. The price of such a decision may be the subsequent disclosure, as is often the case in litigation, of embarrassing publicity. It is no sufficient answer to brandish the term "inherently confidential", and rely upon the assumptions in favour of Mr Hogan made without an evidentiary basis.
See Hogan CLR at 667 per French CJ, Gummow, Hayne, Heydon and Kiefel JJ; HCA at paras.42-43 per French CJ, Gummow, Hayne, Heydon and Kiefel JJ.
Consideration
The question here is whether an order is necessary to prevent prejudice to the administration of justice: FM Act, s.88G(1)(a). It was not suggested that the other paragraphs of s.88G(1) of the FM Act were necessary bases for suppression or non-publications orders in these proceedings. Each of the operative bases for the making of an order in the other sub-paragraphs of s.88G(1) do not apply in this case: that is, there is no issue of national or international security, no issue of Associate Professor Lejmanoski’s safety, and no necessity to avoid causing undue distress or embarrassment to a party or witness in a criminal proceeding involving an offence of a sexual nature. The latter basis is however informative, for s.88G(1)(d) of the FM Act shows that the Parliament gave consideration to what circumstances causing undue distress or embarrassment to a party or a witness might give rise to the necessity to make a suppression or non-publication order, and that bar has been put at a minimum height of a criminal proceeding involving an offence of a sexual nature. That, of course, does not necessarily answer the question of whether or not an order is necessary in this case to prevent prejudice to the proper administration of justice, but it is indicative of the strength of the test of necessity which might be required, and reinforces the High Court’s observation in Hogan that “‘necessary’ is a strong word.”: Hogan CLR at 664 per French CJ, Gummow, Hayne, Heydon and Kiefel JJ; HCA at paras.30 per French CJ, Gummow, Hayne, Heydon and Kiefel JJ.
The fact that proceedings might result in “embarrassing publicity”: Hogan CLR at 667 per French CJ, Gummow, Hayne, Heydon and Kiefel JJ; HCA at paras.43 per French CJ, Gummow, Hayne, Heydon and Kiefel JJ, is not of itself sufficient to make it necessary to issue a suppression or non-publication order. Embarrassment or distress as a consequence of the publication or evidence admitted in proceedings does not equate to prejudice to the administration of justice because those consequences are the ordinary incidents of participation in proceedings, having regard to the presumption that, in accordance with the principle of open justice, proceedings will be public. Embarrassment is not a marker of prejudice when regard is had to the underlying principle of open justice: John Fairfax Group Pty Ltd (Receivers and Managers Appointed) & Anor v Local Court of New South Wales & Ors (1991) 26 NSWLR 131 at 142-143 per Kirby P (“NSW Local Court”). In Herald & Weekly Times Ltd v Williams & Ors (2003) 130 FCR 435; [2003] FCAFC 217 (“Williams”) the Full Court of the Federal Court having noted, by reference to NSW Local Court and other cases, that embarrassing and damaging publicity was not a sufficient basis for the making of a suppression order: Williams FCR at 444 per Merkel J (with whom Finn and Stone JJ agreed); FCAFC at paras.34-35 per Merkel J (with whom Finn and Stone JJ agreed), then went on to observe as follows:
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": see Johnston v Cameron (2002) 124 FCR 160 at 180. If that situation arises it can be weighed in the discretionary balance that is to be struck between the public interest of open justice and preventing prejudice to the administration of justice. However, that situation has not arisen in the present matter.
Williams FCR at 444-445 per Merkel J; FCAFC at para.36 per Merkel J.
The test is, however, whether the proper administration of justice will be prejudiced, and as the High Court observed in Hogan, the serving of some notion of the public interest, or some balancing exercise of notions of convenience, reasonableness, sensibility or the public interest, is not sufficient to engage the bases for orders, there under the now repealed s.50 of the FC Act, here under s.88G(1) of the FM Act: Hogan CLR at 664 per French CJ, Gummow, Hayne, Heydon and Kiefel JJ; HCA at paras.31 per French CJ, Gummow, Hayne, Heydon and Kiefel JJ; Air New Zealand at para.21 per Perram J.
This Court is bound by the judgments in Hogan and Air New Zealand, which relate to equivalent federal legislative provisions to those in Part 6A of the FM Act: see Suh & Ors v Minister for Immigration & Citizenship & Anor (2009) 175 FCR 515 at 522 per Spender, Buchanan and Perram JJ; [2009] FCAFC 42 at para.29 per Spender, Buchanan and Perram JJ. For this reason, and also because the New South Wales Supreme Court and New South Wales Court of Appeal did not consider the High Court’s judgment in Hogan, the judgments in Welker & Ors v Rinehart [2011] NSWSC 1094 and Rinehart v Welker & Ors [2011] NSWCA 345 referred to by Counsel for Associate Professor Lejmanoski are not of assistance to the Court.
The fact that UWA has no objection to, and does not argue that there is any prejudice to it arising from, the orders sought is irrelevant, as it does not address the question of whether or not there is any prejudice to the administration of justice if a suppression order or non-publication order is not made. The consent or acquiescence of the parties cannot determine whether there is prejudice to the administration of justice warranting the making of a suppression order or non-publication order.
It is argued that the administration of justice would be undermined if the Deed which led to the settlement of the EOC Complaint were to be made public. That does not follow, particularly in circumstances where the Deed has been breached, and the rights now sought to be enforced arise from the alleged breach of the Deed. The “administration of justice” spoken of is not the exercise of administrative and conciliation powers by the WA EOC: see EO Act, ss.80, 84, 88, 91 and 92; but the exercise by this Court of the judicial power of the Commonwealth: Hogan CLR at 664 per French CJ, Gummow, Hayne, Heydon and Kiefel JJ; HCA at paras.30 per French CJ, Gummow, Hayne, Heydon and Kiefel JJ.
The Deed is admissible in evidence, not being precluded by s.131 of the Evidence Act 1995 (Cth): Wingecarribee Shire Council v Lehman Brothers Australia Ltd (in liq) (No. 6) [2011] FCA 350 at paras.17-21 per Rares J (and cases there cited, including State Rail Authority of New South Wales v Smith (1998) 45 NSWLR 382 at 385 per Beazley JA). It is necessary for the Deed to be in evidence for it is the foundation document in relation to the alleged contraventions of a number of the workplace rights in issue in these proceedings. Because Associate Professor Lejmanoski filed a Statement of Claim it was not necessary for her to file the Affidavit annexing the Deed at this stage of the proceedings: FMC Rules, r.4.05(2)(b) and (c), but it would be necessary for the Deed to be put into evidence at some stage of the proceedings in order to make good the claims made. The Deed might also be relevant in relation to the factors for assessment of penalty if any contravention were ultimately to be found. The Court is, therefore, of the view that the Deed is required to be in evidence for the purposes of these proceedings. The Court is therefore of the view that the precondition for disclosure under clause 6.1.2 of the Deed has been met, and insofar as Associate Professor Lejmanoski suggests that there would be prejudice to the administration of justice by reason of the disclosure of the Deed because of a possible breach of that provision, that submission is not made out.
The administration of justice is not prejudiced if, as a result of publicity arising from these proceedings, Associate Professor Lejmanoski is subject to detrimental action by any other employee named in the proceedings, and in particular Professors Smith and Ichim. The administration of justice in these proceedings relates to the exercise of the jurisdiction of this Court in relation to the claims made, and not the future consequences in the workplace of any publicity arising from the proceedings. The Court ought not to be concerned generally with possible further misconduct by staff, lest it become a de facto supervisor over the employees of UWA. This is not an appropriate role for the Court, nor is it apparent that such an outcome was intended by Part 6A of the FM Act. Embarrassment arising from proceedings, difficult as it may be for Associate Professor Lejmanoski, is not sufficient to constitute prejudice to the administration of justice. The Court observes that were a suppression order or non-publication order in these proceedings be made on the above bases, there would be nothing to prevent similar suppression orders or non-publication orders being granted in other cases in which those bases arise. Those bases might apply to a vast array of workplace relations and human rights matters heard by this Court, and it cannot be the case that suppression orders and non-publication orders would be granted in such a vast number of such cases, because such orders are clearly designed to be the exception, rather than a frequent occurrence. Any detrimental action taken against Associate Professor Lejmanoski which seeks to deter her from furthering these proceedings, might constitute an interference with the administration of justice, the integrity of the proceedings, and the authority of the Court, such as to give rise to a charge of contempt of this Court: FM Act, s.88B That ought to be disincentive enough to preclude any person from acting in such a manner. Further, such deterrence might render a suppression order in this case, a supplementary, rather than a necessary preventative measure. The difficulty for present purposes for the submission made by Associate Professor Lejmanoski is that there is no evidence, apart from a speculative assertion by Associate Professor Lejmanoski, which would warrant this Court finding that any person had, or was proposing to, take such steps as to deter her from taking these proceedings further. In those circumstances, there is no, or no sufficient, evidence of any possible prejudice to the administration of justice. Were such evidence to emerge, however, the Court does not preclude the possibility of future suppression orders or non-publication orders, notwithstanding that they cannot presently be justified.
It follows from all of the above that Associate Professor Lejmanoski has not clearly justified a case to warrant the Court making the suppression and non-publication orders that she seeks.
Conclusions and orders
The Court has concluded that Associate Professor Lejmanoski’s application for suppression and non-publication orders is to be dismissed. There will be an order accordingly. There will also, therefore, be an order setting aside the orders of 15 January 2013, as well as amending those orders to correct an error then made in the section number used. Otherwise, the matter is adjourned to a further directions hearing at 9.45am on 11 April 2013.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 28 March 2013
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