Oldham v Capgemini Australia Pty Ltd

Case [2015] FCA 1149


FEDERAL COURT OF AUSTRALIA

Oldham v Capgemini Australia Pty Ltd [2015] FCA 1149

Citation: Oldham v Capgemini Australia Pty Ltd [2015] FCA 1149
Parties: SHELLEY OLDHAM v CAPGEMINI AUSTRALIA PTY LTD and PAUL THORLEY
File number: VID 582 of 2014
Judge: MORTIMER J
Date of judgment: 26 October 2015
Catchwords:

PRACTICE AND PROCEDURE – third party application for leave to inspect documents – third party sought leave to inspect Australian Human Rights Commission complaint attached to originating application and referred to in statement of claim for potential use in overseas criminal proceeding – no inspection as of right of documents referred to in statement of claim – consideration of relevant factors including principle of open justice, confidentiality of proceedings before the Commission and apparent failure to utilise other available measures to compel disclosure – application refused

HUMAN RIGHTS – third party application for leave to inspect Australian Human Rights Commission complaint attached to originating application and referred to in statement of claim – consideration of relevant factors including confidentiality of proceedings before the Commission – application refused

Legislation:

Australian Human Rights Commission Act1986 (Cth) ss 46PK, 46PO, 49
Federal Court of Australia Act1976 (Cth) ss 17, 37AE, 37AF, 37AG, 43, Pt VAA Div 2

Federal Court Rules 2011 (Cth) rr 2.32, 2.32(2), 2.32(4), 16.02, 16.04, 34.163, Sch 1

Criminal Disclosure Act 2008 (NZ) ss 6, 24 to 29  

Cases cited: Australian Securities and Investments Commission v Cassimatis (No 4) [2015] FCA 465
Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; 105 FCR 573
Knight v F.P. Special Assets Limited [1992] HCA 28; 174 CLR 178
Oasis Hotel Ltd v Zurich Insurance Co (1981) 124 DLR (3d) 455
Date of hearing: Heard on the papers
Date of last submissions: 12 October 2015
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 59
Counsel for the applicant: Mr C Gunst QC with Mr M Champion
Solicitor for the applicant: Holding Redlich
Counsel for the respondents: The respondents did not seek to be heard on the third party application
Solicitor for the non-party applicant on the third party application: Lennon Mazzeo Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 582 of 2014

BETWEEN:

SHELLEY OLDHAM
Applicant

AND:

CAPGEMINI AUSTRALIA PTY LTD
First Respondent

PAUL THORLEY
Second Respondent

JUDGE:

MORTIMER J

DATE OF ORDER:

26 OCTOBER 2015

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The interlocutory application by Mr Lewis Scott, made on 17 September 2015, is refused.

2.There be no order as to costs in respect of the application.

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


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 582 of 2014

BETWEEN:

SHELLEY OLDHAM
Applicant

AND:

CAPGEMINI AUSTRALIA PTY LTD
First Respondent

PAUL THORLEY
Second Respondent

JUDGE:

MORTIMER J

DATE:

26 OCTOBER 2015

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. This is an application by Mr Lewis Scott for orders permitting him, as…

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Oldham v Capgemini Australia Pty Ltd [2015] FCA 1149
Case
[2015] FCA 1149
Decision Date

CaseChat Overview and Summary

In the matter of Oldham v Capgemini Australia Pty Ltd, the Court was called upon to decide whether a third party, Mr Lewis Scott, was entitled to inspect documents relevant to the proceedings. The application concerned a complaint to the Australian Human Rights Commission (AHRC) that was attached to the originating application and referred to in the statement of claim. Mr Scott sought leave to inspect these documents for potential use in an overseas criminal proceeding. The central legal issues were whether the documents were subject to inspection as of right, and if not, whether the Court should exercise its discretion to permit inspection under r 2.32(4) of the Federal Court Rules.

The Court examined the relevant factors, including the principle of open justice, the confidentiality of proceedings before the AHRC, and Mr Scott's apparent failure to utilise other available measures to compel disclosure. Given that the documents were not subject to inspection as of right, the Court had to weigh these considerations. The Court found that the principle of open justice, while important, was not sufficiently compelling to override the confidentiality of the AHRC proceedings and Mr Scott's failure to seek disclosure through other means. Therefore, the application for leave to inspect the documents was refused.

Ultimately, the Court ruled against Mr Scott’s application, concluding that there was no real basis for a suppression or non-publication order. Furthermore, the Court decided not to make any order as to costs in respect of the application. This decision was based on the distinct nature of Mr Scott’s application, which was unrelated to the main proceedings, and the fact that Ms Oldham, who had participated in the application, was legally represented and had incurred legal costs voluntarily. Therefore, it was not deemed appropriate for the respondents to compensate her for these costs.

Orders

Orders of the court

1. The interlocutory application by Mr Lewis Scott, made on 17 September 2015, is refused.

2. There be no order as to costs in respect of the application.

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

Background

Background to the litigation

Submissions on her behalf were also filed, and Mr Scott then filed submissions in response.Factual background I make the following findings of fact, based on the evidence adduced in this application, and by reference to the material filed in the proceeding itself, including the initial application for inspection. This proceeding concerns allegations of conduct by or on behalf of the respondents said to contravene the Sex Discrimination Act 1984 (Cth) and the Disability Discrimination Act 1992 (Cth). The conduct is alleged to have occurred in the course of Ms Oldham’s employment with the first respondent, including conduct alleged to have occurred in New Zealand. Ms Oldham also alleges breaches of her contract of employment with the first respondent. The period covered by the allegations is unclear, but appears to be from approximately the middle of 2012 to the middle of 2013. Mr Scott is serving a sentence of imprisonment in New Zealand, having been convicted of three serious criminal offences in June 2014. As I have noted above on the material before the Court, his appeal was scheduled to be heard on 9 July 2015. Disclosure in these reasons of the detailed factual circumstances in which this inspection application is made could reveal matters that appear to have been the subject of orders protecting those matters from disclosure by the New Zealand courts, through a variety of methods. It is unnecessary to the determination of the inspection application to make any such detailed disclosure. For that reason, although I have read and considered them carefully, I do not set out, or refer to, the details of the affidavit material provided on the application by Mr Smith and by Ms Oldham.Relevant provisions Where a person wishes to bring a proceeding in this Court relying on the Australian Human Rights Commission Act1986 (Cth) (AHRC Act), the making of a complaint to, and the termination of that complaint by, the Australian Human Rights Commission is a precondition to the filing of an application in this Court: see s 46PO of the AHRC Act. Rule 34.163 of the Federal Court Rules provides:(1)A person who wants to start a proceeding under the Human Rights Act must file an originating application, in accordance with Form 116.(2) The originating application must be accompanied by:(a) a copy of the original complaint to the Commission; and(b)a notice of termination of the complaint given by the President of the Commission.(3) The originating application must include any other claim that the person has, in addition to the claim of unlawful discrimination.Note:The Registrar will fix a date and time and place for hearing and endorse those details on the originating application. One of the reasons for this rule is that this Court’s jurisdiction is limited by s 46PO(3) of the AHRC Act which provides:(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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Neither the affidavits nor the submissions will be available for inspection as of right under r 2.23(2), although Mr Scott’s interlocutory application will be available, as will these reasons for judgment. Any person who wishes to inspect the affidavits and submissions would have to go through the kind of process Mr Scott has undertaken, and persuade the Court to exercise its discretion in r 2.32(4) favourably to permit inspection of the material accompanying the interlocutory application. That being the case, I do not consider that there is a real basis for a suppression or non-publication order on any of the grounds set out in s 37AG of the Federal Court Act.Conclusion The interlocutory application for leave to inspect the AHRC Complaint made by Ms Oldham must be refused, based on the current material before the Court. There is of course nothing to preclude a further application, on new or different material. Ms Oldham submits Mr Scott should pay the costs of the application. The application has been unsuccessful and the usual order is that costs would follow that event. In reply, Mr Scott did not make any submissions about the appropriate costs orders. It is unlikely that if the application had been successful, I would have ordered Ms Oldham (who actively resisted the application) to pay the legal costs of Mr Scott. The question is whether it is appropriate to order Mr Scott to pay Ms Oldham’s legal costs. Section 43 of the Federal Court Act empowers the Court to make orders for costs “in a proceeding”. That power extends to an order for costs against a non-party, although in such circumstances the power “must be exercised judicially and in accordance with general legal principles pertaining to the law of costs”: see Knight v F.P. Special Assets Limited [1992] HCA 28; 174 CLR 178 at 192, citing with approval the Court of Appeal of British Columbia in Oasis Hotel Ltd v Zurich Insurance Co (1981) 124 DLR (3d) 455 at 462. The non-parties against whom costs orders might be made generally have some discernible connection to the proceeding, such as legal practitioners or receivers of a party. Although this application is made “in” the proceeding between Ms Oldham and the respondents, in substance the subject matter and purpose of the application is completely divorced from this proceeding. Mr Scott was entitled to apply for leave under r 2.32(4), and did so in compliance with the manner the Court required. Ms Oldham chose to participate in the application but was not required to. Since she is legally represented in this proceeding and the submissions on her behalf were signed by senior and junior counsel, it is fair to infer she may have incurred legal costs by reason of her participation. In the circumstances as revealed by the evidence, it is understandable why she chose to participate. However, those are not costs which on any view it would be reasonable at the end of this proceeding (and in the event she is successful) to require the respondents to compensate her for. Rather she must bear them herself, or Mr Scott must bear them.

Ratio Decidendi

Legal Principle Established

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