LIMB and DIRECTOR, WORKING WITH CHILDREN SCREENING UNIT AS THE DELEGATE FOR THE CHIEF EXECUTIVE OFFICER, DEPARTMENT OF COMMUNITIES

[2024] WASAT 48

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: WORKING WITH CHILDREN (SCREENING) ACT 2004 (WA)

CITATION:   LIMB and DIRECTOR, WORKING WITH CHILDREN SCREENING UNIT AS THE DELEGATE FOR THE CHIEF EXECUTIVE OFFICER, DEPARTMENT OF COMMUNITIES [2024] WASAT 48

MEMBER:   DR S WILLEY, SENIOR MEMBER

HEARD:   25 MARCH 2024

FURTHER SUBMISSIONS RECEIVED ON 9 APRIL 2024 AND 13 MAY 2024

DELIVERED          :   16 MAY 2024

FILE NO/S:   VR 28 of 2023

BETWEEN:   JUSTIN LIMB

Applicant

AND

DIRECTOR, WORKING WITH CHILDREN SCREENING UNIT AS THE DELEGATE FOR THE CHIEF EXECUTIVE OFFICER, DEPARTMENT OF COMMUNITIES

Respondent

Catchwords:

Practice and procedure - Application for non-publication order - Relevant principles - Tribunal's power to make a non-publication order

Legislation:

State Administrative Tribunal Act 2004 (WA), s 5, s 31, s 61(4), s 61(4)(a), s 61(4)(b), s 61(4)(c), s 61(4)(d), s 61(4)(e), s 61(4)(f), s 61(4)(g), s 61(4)(h), s 62, s 62(3)
Working with Children (Criminal Record Checking) Amendment Act 2022 (WA), s 34
Working with Children (Screening) Act 2004 (WA), s 4, s 9, s 13, s 17, s 17(3)(d), s 19, s 39, s 39(ca)

Result:

Application for non-publication order dismissed

Category:    B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Ms S Keighery

Solicitors:

Applicant	:	N/A
Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28; (2008) 36 WAR 39

Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171

Medical Board of Australia and Ogundipe [2019] WASAT 32

Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151

Nursing and Midwifery Board of Australia and A Practitioner [2019] WASAT 148

Thillagaratnam and Legal Services and Complaints Committee [2022] WASAT 116

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. These reasons deal with an application by Mr Justin Limb (Applicant) for a non-publication order pursuant to s 62 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).  The application seeks to suppress the publication of the Applicant's name in this proceeding (Application).

2. For the following reasons, the Application must fail. The Applicant has advanced no basis on which a non-publication order may be issued having regard to the terms of the SAT Act.

Background

1. For present purposes, the relevant background is that the Applicant was employed as a teacher. While so employed, the Applicant held an assessment notice (commonly referred to as a working with children card) under s 9 of the Working with Children (Screening) Act 2004 (WA) (WWC Act).  The Applicant held an assessment notice from 6 July 2017.

2. On 29 January 2020, the Western Australian Police Force notified the Working with Children Screening Unit (Screening Unit) (under s 17 of the WWC Act) that the Applicant had been charged with sexually penetrating a child over 16 years of age under his authority and indecently dealing with a child over 16 years of age under his authority. These are Class 2 offences for the purposes of the WWC Act.

3. Section 17(3)(d) of the then WWC Act authorised the Screening Unit to make a further decision as to whether to issue the Negative Notice prohibiting him from child-related work.

4. By letter dated 30 January 2020, an interim Negative Notice was issued to the Applicant pursuant to s 13 of the WWC Act. The letter further explained that the Screening Unit was considering whether to issue the Applicant with a Negative Notice and invited him to make submissions in support of the issue of a working with children card.[1]  The Applicant made no written submissions.

   [1] Respondent's Statement of Issues, Facts and Contentions (SIFC), para 14.

5. On 13 March 2020, the Applicant was advised in writing of the decision of the Delegate for the Chief Executive Officer, Department of Communities (Respondent) to issue him with a Negative Notice.  Written reasons were provided.[2]

   [2] Respondent's Bundle of Documents, pages 45 – 47.

6. On 31 December 2021, the Applicant was charged on indictment with seven counts of sexually penetrating a child over 16 years of age under his authority and three counts of indecently dealing with a child over 16 years of age under his authority.[3]

   [3] Respondent's Bundle of Documents, page 58.

7. On 25 November 2022, following a jury trial, the Applicant was acquitted of all ten counts on the indictment.[4]

   [4] Respondent's Bundle of Documents, pages 914 – 916.

8. On 15 December 2022, the Applicant applied to cancel the Negative Notice under s 19 of the WWC Act.

9. On 22 February 2023, the Applicant was requested to provide a written submission regarded the cancellation.  A written submission was provided on 24 February 2023.

10. On 15 March 2023, the Respondent refused to cancel the Applicant's Negative Notice.  Written reasons for that decision were provided.

11. On 7 April 2023, the Applicant applied to the Tribunal for a review of the Respondent's decision to refuse to cancel his Negative Notice. On 5 July 2023, the decision to refuse to cancel the Negative Notice was affirmed following a reconsideration pursuant to s 31 of the SAT Act.

12. The matter was listed for final hearing on 25 March 2024. At the commencement of the final hearing, the Applicant made an oral application for a non-publication order pursuant to s 62 of the SAT Act. The final hearing proceeded and closing submissions will be delivered on 5 June 2024.

13. At the conclusion of the hearing, I made orders allowing for the Applicant to make an interim application (in writing) for a non­publication order together with any supporting submissions and evidence.  The Respondent was also entitled to file submissions in reply to any application for a non-publication order.

The Tribunal's power to issue a non-publication order

1. The Tribunal is a creature of statute.[5] Its jurisdiction and powers derive only from Enabling Acts, and the SAT Act. The Tribunal's power to make a non-publication order is found in s 62 of the SAT Act. Section 62(3) provides that:

   … [T]he Tribunal may, in the circumstances described in section 61(4), order that anything, or any particular thing, to which this section applies is not to be published except in the manner and to the persons, if any, specified by the Tribunal.

   [5] Thillagaratnam and Legal Services and Complaints Committee [2022] WASAT 116 [24].

2. The plain effect of s 62(3) of the SAT Act is that the power to make a non-publication order arises 'in the circumstances described in s 61(4)' which is in the following terms:

   The Tribunal may make an order … if the Tribunal considers it is necessary to do so —

   (a)to avoid endangering the national or international security of Western Australia or Australia; or

   (b)to avoid damaging inter‑governmental relations; or

   (c)to avoid prejudicing the administration of justice; or

   (d)to avoid endangering the physical or mental health or safety of any person; or

   (e)to avoid offending public decency or morality; or

   (f)to avoid endangering property; or

   (g)to avoid the publication of confidential information or information the publication of which would be contrary to the public interest; or

   (h)for any other reason in the interests of justice.

Relevant principles

1. The Application must ultimately be considered having regard to the WWC Act, read with provisions of the SAT Act, against the backdrop of the relevant facts. I note that, in the event of an inconsistency, the WWC Act prevails over the SAT Act.[6]

WWC Act

[6] SAT Act, s 5.

1. As a starting point, it is relevant that s 39 of the WWC Act imposes an obligation of confidentiality on persons engaged in the performance of functions under the Act.

2. Nevertheless, in Chief Executive Officer, Department for Child Protection v Grindrod [No 2] (Grindrod [No 2]),[7] the Court of Appeal (by majority) determined that the name of the person to whom the negative notice was issued should be published in circumstances where the Tribunal had made an order for non-publication.  Buss JA (with Wheeler JA agreeing) set out the following general principles:

   115However, it is, of course, a fundamental feature of the Australian judicial system that proceedings be conducted by a court which is, and is seen to be, independent and impartial, and that those proceedings should, with strictly limited exceptions, be conducted in public.  See Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 343 [3]; R v Tait (1979) 46 FLR 386, 402; Russell v Russell (1976) 134 CLR 495, 520.

   116As Steytler J (as his Honour then was) noted in Reynolds v Panten [No 1] [1999] WASCA 89; (2000) 23 WAR 215, 234 [89], there is no doubt that there is a heavy evidentiary onus on a party to legal proceedings in a court who seeks any restriction on the publication of those proceedings. That principle extends to the suppression of the name of a party. I note that an appeal from Steytler J's decision was dismissed: Reynolds v Panten [No 2] [2000] WASCA 412; (2000) 23 WAR 238.

   117… Although the appellant has not chosen to appeal against the Tribunal's order, the issue raises a question of public interest which transcends the private concerns of the parties. The publication of the respondent's name will, no doubt, cause him embarrassment and, possibly, some distress. I am not persuaded, however, that, in the present case, it is in the interests of justice that the respondent's name should be suppressed.  In the present case, the public interest in open justice prevails over the respondent's private interest, especially where the facts and other history of the respondent's 'non-conviction charges' are a matter of public record.  In my opinion, this court should not, in these reasons or in the formal orders it makes in the appeal, suppress the name of the respondent.

   [7] Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28; (2008) 36 WAR 39 (Buss JA, Murray AJA, Wheeler JA) [115] – [117].

3. In Chief Executive Officer, Department for Child Protection v Scott[No 2] (Scott [No 2]),[8] Buss JA (McLure JA agreeing) observed that:

   Section 39 of the WWC Act imposes an obligation of confidentiality on persons engaged in the performance of functions under the Act, with respect to information obtained in the course of the performance of their functions, and creates an offence for contravention of that obligation. However, nothing in the WWC Act imposes any restriction on the publication of such confidential information by courts hearing and determining proceedings under or in connection with the Act. The courts are to apply existing statutory or common law principles, as the case may be, governing the publication of information tendered in evidence or otherwise before them.[9]

   [8] Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171 (McLure JA, Buss JA, Newnes AJA).

   [9] Scott [No 2] [149].

4. In 2022, s 39 of the WWC Act was amended to include subsection (ca) which expressly provides that information can be disclosed if the information relates to proceedings before a court or tribunal and the proceedings are open to the public.[10]

SAT Act

[10] Working with Children (Criminal Record Checking) Amendment Act 2022 (WA), s 34.

1. The principles relevant to the general application of s 62 of the SAT Act, read with s 61(4) of the SAT Act, were discussed by the Court of Appeal in Medical Board of Western Australia v A Medical Practitioner (Medical Board v A Practitioner).[11]  Those principles were referred to in Medical Board of Australia and Ogundipe,[12] and by President Pritchard in Nursing and Midwifery Board of Australia and A Practitioner (Nursing and Midwifery Board v A Practitioner).[13]

   [11] Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151 [86] – [88] (Martin CJ, Newnes JA, Murphy JA).

   [12] Medical Board of Australia and Ogundipe [2019] WASAT 32 [15].

   [13] Nursing and Midwifery Board of Australia and A Practitioner [2019] WASAT 148 [11].

2. These principles can be summarised as follows:

   (1)The Tribunal has been given an express power to prohibit publication of the matters specified in s 62 of the SAT Act in the circumstances specified in s 61(4).

   (2)There are material differences of some significance between 'open justice principles' applied in common law courts, and the rights and obligations conferred on the Tribunal by the SAT Act.

   (3)These differences reinforce the observation that when an issue arises as to whether a non-publication order ought to be made, and if so, its scope, the question is to be resolved by directing attention to the relevant provisions of the SAT Act rather than by emphasis upon the common law principles of open justice which have evolved in relation to courts.

   (4)This does not mean that an expansive view should be taken of the powers conferred by the SAT Act to suppress publication of certain material. On the contrary, the language of the SAT Act compels the conclusion that it was intended that orders would only be made under those sections if necessary to avoid the particular consequences specified in s 61(4)(a) - (g) or in the interests of justice through s 61(4)(h).

   (5)The requirement that the order be 'necessary' reinforces that there must be a real and substantial connection between the publication of material and the relevant adverse consequence specified in the section.

   (6)A remote possibility of harm arising from an indirect or tenuous connection between a failure to make a suppression order will not satisfy the statutory requirement that the order be 'necessary'.

   (7)The particular consequences specified in s 61(4)(a) - (g) apply only to consequences of a significant or material kind, and not to consequences which are minor in character, transient or ephemeral.

3. In Nursing and Midwifery Board and A Practitioner, Pritchard P explained that:

   Making a non-publication order in relation to the name of the respondent would have the consequence of undermining the transparency of the disciplinary process which is significant in relation to deterring other health professionals from engaging in similar conduct and for the protection of consumers of health services. To some extent, that consideration underlies the requirements of s 61 of the SAT Act. It is also reflected in the requirement in s 61(4) of the SAT Act for the Tribunal to be satisfied that the non-publication order is necessary to avoid the consequences referred to, in this case, the danger to the physical or mental health or safety of any person.  That requires a consideration of whether a non-publication order is the only way to avoid endangering the respondent's mental health in the present circumstances.[14]

Materials and submissions in support of the Application

[14] Nursing and Midwifery Board and A Practitioner [19].

1. The Applicant makes the Application on three bases:

   (a)Protection of his well-being

   The negative media attention (associated with the criminal charge before the District Court) has caused him 'immense emotional distress'.  He is concerned about the further impact on his mental health and well-being if his name is published in connection with the proceeding.

   (b)Family protection

   The negative publicity has also significantly impacted his family.  Publishing his name again would subject his family to unwanted scrutiny and further emotional hardship.  

   (c)Employment opportunities

   The negative media coverage has made it difficult for him to secure employment.  A non­publication order would prevent further damage to his employment prospects.

2. The Applicant submits that, while he understands the public interest in administrative hearings, in this case the public interest in him being identified is 'minimal'.  The proceeding relates to a review against a Negative Notice, it is not a matter of public safety or national security.  Furthermore, the outcome of the proceeding will be known to the public, regardless of whether there is a non-publication order in place.

3. The Applicant further submits that he has been through a 'lengthy and emotionally draining legal process' and was 'proven innocent'.  However, he submits that the negative publicity continues to affect his life.  A non­publication order will allow him to move on with life and rebuild his reputation.

4. The evidence on which the Applicant relies are email exchanges where he has requested The West Australian remove on-line articles relating to his District Court trial following his acquittal.  He also contacted Google.  While the content was not removed, on 12 September 2023, The West Australian published an article headed 'Former teacher Justin Limb cleared of abusing pupil at Perth private school'.

5. The Applicant provided no further evidence.

Respondent's position

1. The Respondent opposes the Application.  The Respondent observes that the following matters have already been published 'to the world and media at large':[15]

   (a)the non-conviction charges;[16]

   (b)the Applicant's name and profession; and

   (c)the relevant school at which the Applicant taught, and the complainant attended (Carey Baptist College). 

   [15] Respondent's submissions on non-publication order, para 9.

   [16] Pursuant to s 4 of the WWC Act, a non-conviction charge is defined to mean 'a charge of an offence that has been disposed of by a court otherwise than by way of a conviction …'.

2. The Respondent submits that the matters raised by the Applicant do not, either singly or in combination, require that his name be suppressed.  The Applicant's concern that he was acquitted is irrelevant because the review is premised on the non-conviction charges.  That is to say, this proceeding is being conducted on the basis that the Applicant was acquitted in the District Court.

3. The Respondent submits that, by reference to the decisions of Grindrod [No 2] and Scott [No 2], the Court of Appeal has twice made clear that the public interest in open justice prevails over the Applicant's private interests in the context of appeals under the WWC Act. In any event, the Applicant's non­conviction charges are now a matter of public record.

4. While the Tribunal is not a court, the Respondent submits that the fundamental principles of open justice should be applied under the SAT Act in a manner consistent with the decisions of the Court of Appeal.

Disposition

1. I have given careful consideration to the submissions and materials lodged in support of the Application.  However, for the following reasons, the Application must fail. 

2. As I explained at [24(2)] above in the context of the applicable principles, the question of whether to make a non-publication order focuses attention on the terms of the SAT Act, not the traditional principles of 'open justice' that may be enunciated by the common law courts.[17]

   [17] Medical Board v A Practitioner [87].

3. It is also the case that the proper consideration and application of s 62 does not encourage an expansive view of the Tribunal's power to make a non-publication order. Rather, the language of the SAT Act compels the conclusion that it was intended that such orders would only be made under those subsections if necessary to avoid the particular consequences specified in s 61(4)(a) - (g), or in the interests of justice having regard to s 61(4)(h).

4. The gravamen of the Applicant's submissions is that the District Court process caused him and his family stress and that he endured emotional distress.  That submission, which I accept, is neither surprising nor is it uncommon. 

5. In my view, it may reasonably be expected that any litigation, much less a criminal trial with the prospect of a custodial sentence, is a very stressful process for the majority of participants.

1. It may also be accepted that the publication of his name in this proceeding will cause the Applicant further embarrassment and some distress. Nevertheless, in my view, in the circumstances of this case, there is no basis on which the power to make a non-publication order can properly be made under the SAT Act.

2. That is so because the materials the Applicant has submitted, and relies upon, in his Application, contains no evidence that engages with the criteria set out in s 61(4) of the SAT Act. That is to say, relevantly, the Applicant has provided no evidence that a non­publication order is required to avoid endangering the physical or mental health of himself or any other person,[18] nor is there any suggestion that a non­publication order is in the public interest,[19] or otherwise in the interests of justice.[20]

   [18] SAT Act, s 61(4)(d).

   [19] SAT Act, s 61(4)(g).

   [20] SAT Act, s 61(4)(h).

3. The only evidence the Applicant has provided points to his difficulty in having the media stories about his criminal trial removed from circulation following his acquittal. That is not a basis on which a non­publication can be made under the SAT Act.

4. The Application must be dismissed.

Orders

The Tribunal orders:

1.The application for a non-publication order is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

DR S WILLEY, SENIOR MEMBER

16 MAY 2024