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Orell v Forrest

Orell v Forrest

Case [2021] FedCFamC2G 197 27 October 2021

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Orell v Forrest

Details

AGLC: Orell v Forrest [2021] FedCFamC2G 197
Case: [2021] FedCFamC2G 197
Decision Date: 27 October 2021

CaseChat Overview and Summary

In the case of Orell v Forrest, the applicant sought to challenge and ultimately vacate a suppression order that was initially imposed on October 12, 2021, by the court. The suppression order had restricted the publication of certain details pertaining to the proceedings. The applicant contended that the continuation of the suppression order was not necessary to prevent prejudice to the proper administration of justice and that it should, therefore, be vacated. The case was heard and determined in the Supreme Court of Australia.

The primary legal issue the court had to decide was whether the suppression order should be maintained, considering the necessity of preventing prejudice to the administration of justice. In reaching its decision, the court considered several factors, including the principle of open justice and the financial capacity of the respondent to secure legal representation. The court acknowledged the applicant's argument regarding the respondent's potential inability to pay for legal representation due to a loss of income; however, it did not find this to be a sufficient reason to uphold the suppression order. The court also highlighted that the respondent's financial resources remained unknown, and there was no evidence to suggest that the respondent would be unable to afford legal representation even if they were to lose their job.

The court found that the applicant had not sufficiently demonstrated that the suppression order was necessary to prevent prejudice to the proper administration of justice. Given that the principle of open justice was a significant consideration, and the applicant's financial difficulties did not outweigh this principle, the court concluded that the suppression order was no longer necessary. Consequently, the respondent's application was dismissed, and the orders made on October 12, 2021, were vacated.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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Citations

Orell v Forrest [2021] FedCFamC2G 197

Most Recent Citation

FEQ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 121

Cases Citing This Decision

FNT17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 123
Citation 1 (Para 15)

…The considerations in respect of making such orders in the context of the Court Act were considered in Orell v Forrest [2021] FedCFamC2G 197 per Judge Cameron at [5] to [8] and [15] to [22]. Relevant principles are also to be found in C7 v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 70 at [13] to…
FEQ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 121
Citation 2 (Para 15)

…I have had regard to the relevant considerations in respect of making such an orders: see Orell v Forrest [2021] FedCFamC2G 197 per Judge Cameron at [5] to [8] and [15] to [22]; C7A/2017 v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 70 at [13] to [17], Hogan v Hinch (2011) 243 CLR 506 at [21] per…

See all citing cases →

Cases Cited

Roberts-Smith v Fairfax Media Publications Pty Ltd [2018] FCA 1943
Citation 1 (Para 17)

…dministration 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”.…
Minister for Immigration and Border Protection v Egan [2018] FCA 1320
Citation 2 (Para 15)

…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 pr…
Rinehart v Rinehart [2014] FCA 1241
Citation 3 (Para 16)

…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 enca…
Rinehart v Welker & Ors [2012] HCATrans 57
Citation 4 (Para 18)

…onably 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].…
Rinehart v Welker [2011] NSWCA 425
Citation 5 (Para 18)

…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].…
Hogan v Hinch [2011] HCA 4
Citation 6 (Para 20)

…ckmail 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].…
Hogan v Australian Crime Commission [2010] HCA 21
Citation 7 (Para 17)

…ay 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].…
Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836
Citation 8 (Para 16)

…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].…
John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101
Citation 9 (Para 18)

…sed 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].…
Johnston v Cameron [2002] FCA 948
Citation 10 (Para 21)

…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 Aust…
Herald & Weekly Times Limited v Gregory D Williams (Formerly Identified As Vai) [2003] FCAFC 217
Citation 11 (Para 22)

…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 jus…

Legislation Cited

Federal Circuit and Family Court of Australia Act 2021 (Cth) 229, 230, 231, 232
5 mentions (from Para 8)
Australian Human Rights Commission Act 1986 (Cth) 46PH(1B)(b)
2 mentions (from Para 1)
Federal Court of Australia Act 1976 (Cth) 50
2 mentions (from Para 19)
Sex Discrimination Act 1984 (Cth)
1 mention (from Para 1)

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

ORDER MADE BY:	JUDGE CAMERON
DATE OF ORDER:	27 OCTOBER 2021