Orell v Forrest
[2021] FedCFamC2G 197
•27 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Orell v Forrest [2021] FedCFamC2G 197
File number(s): SYG 1609 of 2021 Judgment of: JUDGE CAMERON Date of judgment: 27 October 2021 Catchwords: PRACTICE AND PROCEDURE – suppression orders – whether necessary to prevent prejudice to the proper administration of justice – relevant considerations. Legislation: Sex Discrimination Act 1984 (Cth)
Australian Human Rights Commission Act 1986 (Cth) s 46PH(1B)(b)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.06, 2.11
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 229, 230, 231, 232
Federal Court of Australia Act 1976 (Cth) s 50
Cases cited: Minister for Immigration and Border Protection v Egan [2018] FCA 1320
John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1991) 26 NSWLR 131
Rinehart v Rinehart (2014) 320 ALR 195
Llewellyn v Nine Network Australia Pty Ltd (2006) 154 FCR 293
Roberts-Smith v Fairfax Media Publications Pty Ltd [2018] FCA 1943
Hogan v Australian Crime Commission (2010) 240 CLR 651
John Fairfax & Sons v Police Tribunal of NSW (1986) 5 NSWLR 465
Rinehart v Welker (2011) 93 NSWLR 311
Hogan v Hinch (2011) 243 CLR 506
Johnston v Cameron (2002) 124 FCR 160
Herald & Weekly Times Limited v Williams (2003) 130 FCR 435
Division: General Number of paragraphs: 31 Date of hearing: 21 October 2021 Counsel for the Applicant: Ms Lahoud Counsel for the Respondent: Mr Pararajasingham Solicitor for Nationwide News Pty Ltd: Mr Matchett ORDERS
SYG 1609 of 2021 BETWEEN: SARAH ORELL
Applicant
AND: ADEN FORREST
Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
27 OCTOBER 2021
THE COURT ORDERS THAT:
1.The respondent’s application in a proceeding filed 12 October 2021 be dismissed.
2.The orders made in this proceeding on 12 October 2021 be vacated.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
INTRODUCTION
On 25 August 2021 the applicant commenced this proceeding alleging that in certain interactions with her in 2012 and 2013 and during the course of her employment the respondent, who was her supervisor, contravened the Sex Discrimination Act 1984 (Cth). A complaint that the applicant brought in that connection to the Australian Human Rights Commission had been terminated on 1 July 2021 under s.46PH(1B)(b) of the Australian Human Rights Commission Act 1986 (Cth).
On 20 September 2021 orders were made concerning the further particularisation of the applicant’s allegations and directing that a defence be filed by 18 November 2021. The matter was also referred to mediation in December.
On 11 October 2021 the Daily Telegraph published in an on-line article certain of the allegations made in the applicant’s statement of claim. The article was also published in the print edition of the Daily Telegraph on 12 October 2021. At 8.46pm on 11 October 2021, the respondent’s solicitors electronically lodged with the Court an application in a proceeding seeking orders suppressing the publication of those allegations and other information contained in the documents in the Court’s file concerning this matter. Interim suppression orders were made on 12 October 2021 and the matter listed for urgent hearing. The on-line article has been taken down and a request sent to remove “the listing appearing in a Google search”.
The respondent seeks the continuation of the orders made on 12 October 2021 on the basis that suppression orders are necessary to prevent prejudice to the proper administration of justice in this case. Nationwide News Pty Ltd, the publisher of the Daily Telegraph, opposes the application.
RELEVANT LEGISLATION
Rule 1.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“FCFCOA(Div2)(GFL) Rules”), relevantly provides as follows in relation to this Court, namely the Federal Circuit and Family Court of Australia (Division 2):
1.06 Application
(1)It is intended that the practice and procedure of the Court in general federal law proceedings be governed principally by these Rules.
…
(4)These Rules apply as follows:
(a) Chapter 1 applies to all general federal law proceedings;
…
A general law proceeding is a proceeding that is not a family law or a child support proceeding.
Rule 2.11 is found in chp.1 of the FCFCOA(Div2)(GFL) Rules and relevantly provides:
2.11 Inspection of documents
…
(2)A person who is not a party may inspect the following documents in a proceeding in the appropriate registry:
(a)an application starting the proceeding or a cross-claim;
…
(d)a pleading or particulars of a pleading or similar document;
…
(3)However, a person who is not a party is not entitled to inspect a document if:
(a)the Court or a Registrar has ordered the document be confidential; or
(b)the person is not entitled to inspect the document because of a suppression order or non-publication order by the Court.
Part 7 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) relevantly provides as follows in relation to the Federal Circuit and Family Court of Australia (Division 2):
229 Safeguarding public interest in open justice
In deciding whether to make a suppression order or non-publication order, the Federal Circuit and Family Court of Australia (Division 2) must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.
230 Power to make orders
(1)The Federal Circuit and Family Court of Australia (Division 2) 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.
(2)The Federal Circuit and Family Court of Australia (Division 2) may make such orders as it thinks appropriate to give effect to an order under subsection (1).
231 Grounds for making an order
(1)The Federal Circuit and Family Court of Australia (Division 2) 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.
232 Procedure for making an order
(1)The Federal Circuit and Family Court of Australia (Division 2) may make a suppression order or non-publication order on its own initiative or on the application of:
(a) a party to the proceeding concerned; or
…
(2)Each of the following persons is entitled to appear and be heard by the Federal Circuit and Family Court of Australia (Division 2) on an application for a suppression order or non-publication order:
(a)the applicant for the order;
(b)a party to the proceeding concerned;
…
(d)a news publisher;
…
EVIDENCE
The respondent’s solicitor, Ms Sutton, has filed three affidavits in support of the application in a proceeding. In the first, affirmed 11 October 2021, Ms Sutton deposes that on Sunday 10 October 2021 she was approached by the journalist who is author of the article, Ms Hildebrandt, seeking comment from the respondent on the contents of the applicant’s statement of claim. Ms Hildebrandt advised that she had applied to the Court for access to the pleading. As recorded earlier, r.2.11 of the FCFCOA(Div2)(GFL) Rules permits persons, without needing leave of the Court, to inspect certain documents on a Court file if confidentiality, suppression or non-publication orders have not been made in respect of them.
In her second affidavit, affirmed 15 October 2021, Ms Sutton deposed to the fact of the on-line and print publications referred to earlier in these reasons. She also deposed that on 12 October 2021 the respondent was temporarily stood down from his employment, the chairman of his employer company saying that this was a result of “events this morning in the press and the seriousness of the allegations”. Ms Sutton deposed that later that day the respondent was stood down from his CEO position and as a director of the company “until further notice”.
Also annexed to Ms Sutton’s second affidavit was a 13 October 2021 medical certificate from the respondent’s treating general practitioner, Dr K Smith, who opined that the respondent was under an unsustainable amount of stress and was suffering from a severe stress response including severe anxiety with panic disorder. His symptoms were recorded to include insomnia, weight loss, hair loss, palpitations and hyperventilation.
Ms Sutton has deposed in her second affidavit:
In our discussions, Mr Forrest has been preoccupied with how he should respond to media interest in his matter, as opposed to substantively engaging in the proceedings. As a result of being so distracted, Mr Forrest has been unable to provide comprehensive instructions regarding critical matters such as his Defence, or, for instance, whether a strike out application should be sought for all or parts of the claim.
Additionally, Mr Forrest has informed me that due to the uncertainty about his employment status and financial security, he is unsure if he will be able to continue to retain legal representation for these proceedings.
Mr Forrest has also informed me that the media speculation around his proceedings is having a significant impact on his family, notably his wife and two sons. This concern for his family’s well-being is further distracting him from engaging in these proceedings.
Ms Sutton also deposed in that affidavit that since the article was first published on 11 October 2021 the respondent had received enquiries from further major Australian media outlets.
Annexed to Ms Sutton’s third affidavit, which was affirmed on 20 October 2021 were two documents. One was a recent digital publication which recorded that the applicant had won a business award. In that announcement it was stated that the applicant is a survivor of sexual assault, although no further details were given. The second document was a further medical certificate concerning the respondent in which Dr Smith stated that the respondent was suffering severe anxiety with panic. The doctor stated that she had grave concerns concerning the respondent’s mental health, he not having slept since the publication of the Daily Telegraph article on 12 October 2021. Dr Smith recorded that the respondent’s condition had been exacerbated by the announcement of the applicant’s business award and that he was in a “perpetual state of stress and worry about his family and their welfare and impact [sic] this is having o [sic] them”. As Dr Smith states that she had prescribed sedation, recommended indefinite time off work and proposed to review the respondent on a weekly basis, it appears that the likely duration of the condition is presently uncertain.
AUTHORITIES
Minister for Immigration and Border Protection v Egan [2018] FCA 1320 was a case in which Allsop CJ granted leave to inspect documents on the court file because, amongst other reasons, they had been relied on at the trial and were not subject to confidentiality or suppression orders. The Chief Justice said:
The principle of open justice is one of the overarching principles in the administration of justice, in this Court and all others. It lies at the heart of the exercise of judicial power as part of the wider democratic process. The principle involves justice being seen to be done. A key part of this task is enabling accurate and fair public reports of proceedings. Open justice is not an absolute concept, unbending in its form. It must on occasion be balanced with other considerations, including but not limited to considerations such as the avoidance of prejudice in the administration of justice or the protection of victims. Nevertheless, an order restricting the ordinary open justice approach is not lightly made. (at [4])
His Honour noted that the documents in question did not contain scandalous material that was not already publicly known and quoted Kirby P’s statement in John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1991) 26 NSWLR 131 that:
It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms … (at 142)
This Court’s rules governing the inspection of court files echo those of the Federal Court, specifically the ability of non-parties to inspect certain portions of the Court’s file prior to any trial and without needing the leave of the Court. Relevantly in that regard, Jacobson J said in Rinehart v Rinehart (2014) 320 ALR 195 at 199 [31], that the open justice principle is ordinarily engaged in the Federal Court when proceedings are commenced. By way of background to that encapsulation of the law, his Honour referred to the discussion of this issue in Llewellyn v Nine Network Australia Pty Ltd (2006) 154 FCR 293 at 297-298 [23].
The provision relied on by the respondent in this case, s.231(1)(a) of the FCFCOA Act, requires that suppression be necessary to prevent prejudice to the proper administration of justice. The strength of the word “necessary’ has been noted in the cases. In Roberts-Smith v Fairfax Media Publications Pty Ltd [2018] FCA 1943, Bromwich J observed at [34]ff that the meaning of “necessary” will depend on the context in which it is used and may not be synonymous with “essential”. As to its meaning in contexts such as the present, Bromwich J relied on a passage from John Fairfax Group v Local Court of NSW in which Kirby P said:
… The basis of the implication [of a power in the Local Court of New South Wales to make a pseudonym order on the basis that it is necessary to secure the proper administration of justice in the proceeding] is that if the kind of order proposed is not made, the result will be — or at least will be assumed to be — that particular consequences will flow, that those consequences are unacceptable, and that therefore the power to make orders which will prevent them is to be implied as necessary to the proper function of the court. … (at 161)
The fact that a suppression order may be “convenient, reasonable or sensible” is insufficient to meet the test of necessity: Hogan v Australian Crime Commission (2010) 240 CLR 651 at 664 [31].
A finding of necessity must be based on evidence from which the Court can reasonably conclude that it is necessary to make such an order: John Fairfax & Sons v Police Tribunal of NSW (1986) 5 NSWLR 465 at 477; Rinehart v Welker (2011) 93 NSWLR 311 at 320-321 [29], 332 [100]-[101].
In Roberts-Smith v Fairfax Media Publications, Bromwich J observed that although open justice is a primary consideration under the provision in the Federal Court of Australia Act 1976 analogous to s.229 of the FCFCOA Act, it is not the primary consideration. His Honour quoted Young JA in the New South Wales Court of Appeal saying in Rinehart v Welker:
A primary object for courts to fulfil is to provide an independent and impartial tribunal for the settling of disputes between parties. Fulfilment of such a purpose is best served by open and public hearings. However, the means of achieving the purpose must not be elevated above the purpose. (at 331 [87])
Justice Bromwich went on to conclude:
… I interpret the requirement … of taking into account in deciding whether or not to make or continue a non-publication order that a primary objective of the administration of justice is to safeguard the public interest in open justice, as being a requirement to weigh this consideration in the balance of assessing whether such an order is necessary, rather than being some standalone requirement that operates in the nature of a veto. (at [38])
In the context of preventing prejudice to the administration of justice, the cases have identified a number of exceptions to the open justice principle, such as proceedings involving:
·wards of court and the mentally ill;
·police informants and undercover police officers;
·secret processes where the effect of publicity would be to destroy the subject-matter of the action;
·blackmail and extortion; and
·commercial information where disclosure of the information would seriously affect its commercial value:
Hogan v Hinch (2011) 243 CLR 506 per French CJ at 531-532 [21]; Rinehart v Welker at 321-323 [34]-[37]; Roberts-Smith v Fairfax Media Publications at [37].
As to what other considerations might weigh in favour of the making of a suppression order under s.231(1)(a) of the FCFCOA Act, in Johnston v Cameron (2002) 124 FCR 160, Finkelstein J said:
On the facts under consideration, my view is that the only basis for a suppression order under s 50 of the Federal Court of Australia Act 1976 (Cth) is if the failure to make an order would prevent or deter a person such as Mr Johnston from bringing his action, or if there was a real risk as opposed to a remote possibility that this would occur. Every citizen has a right to have his or her rights and obligations ascertained in a court of law. If going to court would expose the citizen to public condemnation, abuse or defamatory comments such as would deter him from proceeding, this would be prejudicial to the administration of justice. Prejudice of this type can be avoided by a suppression order. (at 180 [90])
Section 50 of the Federal Court of Australia Act 1976 (Cth) provided:
The Court may, at any time during or after the hearing of a proceeding in the Court, make such order forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth.
That passage from Finkelstein J’s reasons in Johnston v Cameron was cited with approval in Herald & Weekly Times Limited v Williams (2003) 130 FCR 435 by Merkel J, Finn and Stone JJ agreeing, in support of the proposition that, although public confidence in and respect for the courts is best achieved through open justice, and that for that the courts will generally tolerate the discouraging effect that publicity has on litigants and witnesses:
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. … (at 444-445 [36])
SUBMISSIONS
The respondent has submitted that if the interim suppression order were not continued, the impact upon him of further publicity and dissemination of the information contained in the Court file would exacerbate the difficulties he is presently suffering in dealing with the proceeding. Ms Sutton’s second affidavit deals with her perceptions of the respondent’s (reduced) capacity to provide instructions as well as what appears to be a risk to his income and his capacity in the future to fund his defence. It was put in addresses that the scope and detail of the allegations in the statement of claim meant that the respondent needed legal representation.
It was submitted for the respondent that were a suppression order not to be in place, the proceeding would receive coverage in media outlets other than the Daily Telegraph and that this would “further impact the Respondent’s ability to engage in these proceedings”. Dr Smith’s second report paints a concerning picture of the respondent’s mental health and it was argued that:
… the continued publication of information relevant to these proceedings will clearly have a “real risk” of deterring or otherwise hindering the Respondent from defending these proceedings. This, in turn, is occasioning prejudice in the administration of justice.
The respondent’s counsel explained in addresses that the respondent was distracted and not acting on the proceeding or giving instructions.
For its part, Nationwide News submits that there is no precedent for a party obtaining suppression orders because they are distracted from their preparation of a case and, in any event, Dr Smith’s evidence, which was the evidential foundation on which that contention was advanced, did not go so far as to say that the respondent’s medical condition would abate if the suppression order were continued and thus did not support the argument that the order should be continued. Nationwide News also argued that at least part of the motivation for the respondent’s employer to stand him down had been the seriousness of the allegations, rather than the fact that they had been reported in the media and the continuance of the suppression order was irrelevant to that underlying motivation. Further, submitted Nationwide News, the contention that a suppression order would be an important factor in the maintenance of the respondent’s funding of his legal representation, in the sense that it might help him keep his employment and so his salary, was unsupported by substantive evidence of the respondent’s financial position more generally.
The applicant supported the arguments made by Nationwide News. The applicant also submitted that mental health was an area of specialised knowledge and that Dr Smith’s expertise to opine on such issues had not been demonstrated.
DISCUSSION
The matter presently before the Court is not concerned with the merits of the allegations that the applicant makes against the respondent and which the Court was told the respondent “wholly denies”. It is concerned only with deciding whether a suppression order is necessary in order to prevent prejudice to the administration of justice. The way the respondent has framed that issue is that the proper administration of justice requires his mental health to be such that his engagement with the proceeding is not compromised by the stress and anxiety which publicity of the applicant’s allegations produces in him.
The respondent’s principal contention is that, absent a suppression order, he will be denied a fair hearing, in the sense that his ability to present his defence will be materially diminished. In addresses his counsel went further and submitted that absent a continuing suppression order he might, to paraphrase, abandon his defence and not engage with the proceeding. The evidence on which the respondent relies is made up of two short medical certificates from his general practitioner and the account of his solicitor. The accuracy of their factual observations was not challenged by the applicant or by Nationwide News. Further, although there is no evidence that Dr Smith has particular psychological or psychiatric training or expertise, she can be assumed to have had professional exposure to mental health issues and, absent any substantive critique of her opinion, her assessment of the respondent’s mental health must be respected.
Be that as it may, even though at the moment the respondent is distracted from properly attending to this case, I do not believe that the evidence demonstrates that he is at serious risk of abandoning his defence and not engaging with the proceeding. That is decisive because the passages from Johnston v Cameron and Herald & Weekly Times v Williams on which the respondent placed particular reliance require a respondent to be inhibited to that very considerable extent by the availability and presumably publication of information from the Court file before their subjective state of mind will present so serious a threat to the administration of justice that it has to be weighed in the balance against the principle of open justice and then be found to be more important. I accept that the respondent has been much affected by the Daily Telegraph article and the publications of it but the evidence does not support a conclusion that he will, in substance, withdraw from the proceeding if the suppression order is not continued. Difficulty in focussing on the case or in giving instructions is not so grave a threat to the administration of justice that it outweighs the need for there to be open justice.
Similarly, an individual party’s difficulty in paying for legal representation and the risk of having to go without it is, unfortunately, not uncommon and does not outweigh the principle of open justice. In any event, the respondent’s financial resources are unknown and it has not been demonstrated that he would not be able to pay for representation even if he were to lose his job.
CONCLUSION
The respondent has not demonstrated that it is necessary in the interests of the administration of justice that there be a continuing suppression order in this matter. Consequently his application in a proceeding will be dismissed and the orders made on 12 October 2021 vacated.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 27 October 2021
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