Ryan v Transurban Limited
[2024] FCA 994
•19 August 2024
FEDERAL COURT OF AUSTRALIA
Ryan v Transurban Limited [2024] FCA 994
File number: QUD 392 of 2024 Judgment of: RANGIAH J Date of order: 19 August 2024 Date of publication of reasons: 29 August 2024 Catchwords: PRACTICE AND PROCEDURE – application for suppression order – where the parties have agreed to settle the proceeding – where the relevant documents have not been used in Court – whether suppression order necessary to prevent prejudice to the proper administration of justice – application allowed in part Legislation: Australian Human Rights Commission Act 1986 (Cth)
Federal Court of Australia Act 1976 (Cth) ss 37AA, 37AE, 37AF, 37AG, 37AG(1)(a), 37AH(2)(d), 50 and Pt VAA
Sex Discrimination Act 1984 (Cth) ss 28B(2), 47A and 106
Federal Court Rules 2011 (Cth) rr 4.01(2), 2.32, 2.32(2), 2.32(3), 2.32(4) and 34.163(2)
Cases cited: Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) (2015) 331 ALR 68; [2015] FCA 607
Baptist Union of Queensland – Carinity v Roberts (2015) 241 FCR 135
Chen v Migration Agents Registration Authority (No 1) [2016] FCA 649
Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46
Ferguson v Tasmanian Cricket Association (t/as Cricket Tasmania) [2021] FCA 1507
Hogan v Australian Crime Commission (2010) 240 CLR 651
John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512
Llewellyn v Nine Network Australia Pty Ltd (2006) 154 FCR 293
McLaughlin v Glenn [2020] FCA 679
Oldham v Capgemini Australia Pty Ltd (No 2) [2016] FCA 1101
Patterson v Westpac Banking Corporation(No 2) [2024] FCA 818
Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 50 Date of last submission: 20 August 2024 (Respondent) Date of Interlocutory Hearing: 19 August 2024 Solicitor for the Applicant: Mr P Turner of Maurice Blackburn Lawyers Counsel for the Respondent: Ms J Marr Solicitor for the Respondent: Herbert Smith Freehills ORDERS
QUD 392 of 2024 BETWEEN: JACINTA RYAN
Applicant
AND: TRANSURBAN LIMITED
Respondent
ORDER MADE BY:
RANGIAH J
DATE OF ORDER:
19 AUGUST 2024
THE COURT ORDERS THAT:
1.Pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth), on the ground that the order is necessary to prevent prejudice to the proper administration of justice, the following documents filed in the Court are ordered to be confidential within the meaning of r 2.32(1)(b) of the Federal Court Rules 2011 (Cth) and their publication (except to the parties' legal representatives) be prohibited for a period of 30 years:
(a)The Originating Application filed on 16 July 2024;
(b)The Statement of Claim filed on 16 July 2024;
(c)The Affidavit of Patrick Turner filed on 16 July 2024; and
(d)The Defence filed on 16 August 2024.
2.The order for suppression of the Originating Application filed on 16 July 2024 is made upon the applicant’s undertaking to file a copy of the Originating Application with the name of the first individual named in paragraph 5 redacted. For clarity, the copy of the Originating Application filed pursuant to this order is not the subject of any suppression order.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
RANGIAH J:
On 16 July 2024, the applicant filed an Originating Application and Statement of Claim seeking declarations, damages and other relief for alleged contraventions of ss 28B(2) and 47A of the Sex Discrimination Act 1984 (Cth) (the SDA) for which the respondent was alleged to be vicariously liable under s 106 of the SDA.
On 19 July 2024, an application by a non-party for access to the Originating Application and Statement of Claim was submitted. The application form indicated that the person making the request was a “media representative”, and named the relevant “media entity” as an online legal journal.
The matter was listed for a first case management hearing on Monday, 19 August 2024.
On 7 August 2024, the respondent filed an interlocutory application seeking suppression orders in respect of a number of filed documents, and that application was also listed for hearing on 19 August 2024.
At the hearing on 19 August 2024, the Court was informed that the parties had reached an “in-principle agreement” to resolve the dispute. The applicant sought and was granted leave to file a notice of discontinuance within six weeks. The Court was informed that the terms of the proposed settlement included a confidentiality clause, but the terms of the agreement were not disclosed.
The respondent made submissions in support of its application for suppression orders. The applicant made no submissions upon that application.
The respondent’s interlocutory application sought orders including the following:
1.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (the Act) and on the grounds referred to in ss 37AG(1)(a) of the Act, the following documents be ordered confidential within the meaning of r 2.32(1)(b) of the Federal Court Rules 2011 (Cth) and their publication be prohibited:
a.The Originating Application dated 16 July 2024;
b.The Statement of Claim dated 15 July 2024;
c.The Applicant’s Genuine Steps Statement dated 15 July 2015; and
d.The Affidavit of Patrick Turner dated 15 July 2024.
…
After hearing the respondent’s submissions, I decided that suppression orders should be made in respect of all the documents identified in the interlocutory application except the Originating Application and the Genuine Steps Statement. I will provide my reasons for that decision, but, before doing so, it is appropriate to mention one other matter.
On 13 August 2024, the Registry informed the journalist who had applied for non-party access of the filing of the interlocutory application for a suppression order and of the content of s 37AH(2)(d) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). On 14 August 2024, the journalist emailed the Registry indicating that she wished to appear at the hearing of the interlocutory application. The email, understood in the context of the exchange, indicated that she proposed to appear to make submissions as to whether or not any suppression order should be granted.
Owing to an administrative error, the journalist’s request was not brought to my attention until late in the afternoon of Friday, 16 August 2024. I inferred that the journalist wished to make submissions on behalf of the media organisation named in her application for non-party access. I gave instructions for the journalist to be notified that r 4.01(2) of the Federal Court Rules 2011 (Cth) (the Rules) provides that a corporation must not proceed in the Court other than by a lawyer and that, unless she intended to appear as a lawyer, her request to appear remotely at the hearing would be refused. Due to a second administrative error, the journalist was not notified of my decision until the morning of the hearing on Monday, 19 August 2024.
Although I had understood the journalist to have been intending to make submissions on behalf of the media organisation named in her application for non-party access, correspondence from the journalist to the Registry following the hearing of the interlocutory application suggests that she in fact wished to appear on her own behalf as a journalist. If that position had been clear from the outset, I would have allowed the journalist the opportunity of making submissions as to whether she was a “news publisher” for the purposes of s 37AH(2) of the FCA Act and entitled to make submissions upon the interlocutory application on her own behalf.
In respect of its application for a suppression order, the respondent submitted that:
(1)The open justice principle would not be infringed by making the suppression order sought because the matter is at such an early stage and there has been no judicial determination of any issue in the proceeding.
(2)The parties have negotiated in good faith to achieve an agreement that will result in the early finalisation of the proceeding, and the benefit of that finality would be significantly eroded if the court documents remained open to inspection and exposure by third parties.
(3)It would be usual for the settlement to protect the confidentiality of the subject matter of the dispute and that would also be undermined in the absence of a suppression order.
(4)The allegations raised in the proceeding include untested allegations of a serious and damaging nature against non-parties who have no opportunity to put their version of events on the record as they might have done if they had been called to give evidence in the proceeding.
The statutory provisions dealing with suppression orders are found in Pt VAA of the FCA Act.
Section 37AE of the FCA Act provides:
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.
Section 37AF of the FCA Act provides, relevantly:
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:
…
(b)information that relates to a proceeding before the Court and is:
…
(iv)information lodged with or filed in the Court.
(2)The Court may make such orders as it thinks appropriate to give effect to an order under subsection (1).
Section 37AG of the FCA Act provides:
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.
Section 37AA of the FCA Act defines “suppression order” to mean, “an order that prohibits or restricts the disclosure of information (by publication or otherwise)”. A “non-publication order” is defined to mean, “an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information)”.
There is a relationship between Pt VAA of the FCA Act and r 2.32 of the Rules, which deals with inspection of documents filed in a proceeding. That rule provides, relevantly:
2.32 Inspection of documents
…
(2)A person who is not a party may, after the first directions hearing or the hearing (whichever is earlier), inspect the following documents in a proceeding in the proper Registry:
(a)an originating application or cross-claim;
(b)a notice of address for service;
(c)a pleading or particulars of a pleading or similar document;
(d)a statement of agreed facts or an agreed statement of facts;
(e)an interlocutory application;
(f)a judgment or an order of the Court;
(g)a notice of appeal or cross-appeal;
(h)a notice of discontinuance;
(i)a notice of change of lawyer;
(j)a notice of ceasing to act;
(k)in a proceeding to which Division 34.7 applies:
(i)an affidavit accompanying an application, or an amended application, under section 61 of the Native Title Act 1993; or
(ii)an extract from the Register of Native Title Claims received by the Court from the Native Title Registrar;
(l) reasons for judgment;
(m) a transcript of a hearing heard in open Court.
…
(3)However, a person who is not a party is not entitled to inspect a document that the Court has ordered:
(a)be confidential; or
(b)is forbidden from, or restricted from publication to, the person or a class of persons of which the person is a member.
Note:For the prohibition of publication of evidence or of the name of a party or witness, see sections 37AF and 37AI of the Act.
(4)A person may apply to the Court for leave to inspect a document that the person is not otherwise entitled to inspect.
…
It may be noted that under r 2.32(2) of the Rules, any person is entitled to inspect the documents enumerated in that provision, subject under r 2.32(3) to any relevant suppression order or non-publication order.
In this case, the respondent sought a suppression order both in respect of documents a person would otherwise be entitled to inspect under r 2.32(2) (the Originating Application and Statement of Claim) and documents a person would require leave to inspect under r 2.32(4) (the Genuine Steps Statement and affidavit).
The respondent submitted that a suppression order is, “necessary to prevent prejudice to the proper administration of justice”, within the meaning of s 37AG(1)(a) of the FCA Act. In Hogan v Australian Crime Commission (2010) 240 CLR 651 (Hogan), the High Court, considering the former s 50 of the FCA Act, observed at [30] that “‘necessary’ is a strong word”. The High Court held at [31] that it is insufficient that the making of an order appears to the 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”.
The respondent placed substantial reliance upon Patterson v Westpac Banking Corporation(No 2) [2024] FCA 818, where Raper J granted a suppression order in respect of a number of filed documents including an Originating Application, Statement of Claim and an affidavit. Her Honour held:
17This Court has continually recognised that when determining the necessity of preventing prejudice to the proper administration of justice, account may be taken of the fact that the lack of access to the Court file may enhance the prospects of the parties’ negotiations: Patterson (No 1) at [21], citing Oldham (No 2) per Mortimer J; Reynolds v JP Morgan Administrative Services Australia Limited (No 2) [2011] FCA 489; 193 FCR 507 at [30] per Rares J; McLaughlin v Glenn [2020] FCA 679 at [27] per Abraham J; Porter at [99]–[105] per Jagot J.
18There is undoubtedly a very significant public interest in the settlement of proceedings, particularly at an early stage (which is an outcome the Court strives to achieve): see Patterson (No 1) at [20], citing Reynolds at [30]; Valentine v Freemantlemedia Australia Pty Ltd [2013] FCA 1293 at [13] per Mortimer J.
19I accept that this prejudice is made out. The evidence establishes that the parties have agreed to settle at a very early stage and where the terms include, maintaining confidence as to the allegations made and the parameters of the dispute (to the extent articulated) within each of the documents identified in [2](a) to (i) above. Allowing access to the documents would be subversive to the settlement reached by the parties, which is a confidential agreement: McLaughlin at [25]–[26]. I find that the parties are, by their agreement, inhibited in their ability to now comment or be able to ensure balanced or accurate reporting can be undertaken beyond the dissemination of their agreed statement. As in McLaughlin, the proceeding has settled at an early stage where the respondents’ defences, substantive evidence, submissions, among other important documents, remained unfiled, such that the publication of what has been filed is likely to give an incomplete account of the dispute. As Abraham J in McLaughlin observed (at [30]):
… the state of proceedings at the time of settlement were such that … It would, on any account, be an incomplete position. If access to those documents is granted in those circumstances the early settlement of the proceedings has the consequence that the respondents are likely prejudiced, or at the very least, put at a disadvantage.
20Accordingly, the resolution will likely be undermined by third-party access and reporting on matters which all parties seek to keep confidential: McLaughlin at [27]. The contended prejudice, therefore, includes the possible frustration of the parties’ attempt to achieve finality of the proceedings, unless the orders are made. As observed by Mortimer J in Valentine, at [14], the apparent freedom enjoyed by parties and their representatives to conduct negotiations and achieve a settlement, which may be on an admission, partial admission, or non-admission basis, would be inhibited if the allegations which are the subject matter of the proceedings are exposed in the public domain after resolution: Valentine at [14].
Her Honour continued:
23Furthermore, it is my view that the principles of open justice are not infringed in this case. The Court has not been required to adjudicate any issue arising from the material nor has admitted into evidence the identified affidavit evidence as between the parties at this early stage, save for the determination of the two suppression applications. As observed by the Full Court in Lee v Deputy Commissioner of Taxation [2023] FCAFC 22; 296 FCR 272 at [84] per Thawley, Stewart and Abraham JJ:
Open justice facilitates public scrutiny of the way in which courts decide cases and enables the public to understand how the justice system works and why decisions are taken. …
24There has been no exercise of judicial power, save for referral to mediation and the determination of the suppression application in Patterson (No 1).
Section 37AE of the FCA Act requires that in deciding whether to make a suppression 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. The respondent submitted that s 37AE does not apply because the open justice principle is not engaged since the matter is at such an early stage and there has been no judicial determination of any issue in the proceeding. The submission proceeded upon an assumption that s 37AE can have no application beyond the bounds of the open justice principle.
The objective described in s 37AE of the FCA Act of safeguarding the public interest in open justice encompasses the open justice, or open court, principle. The principle is reflected in the aphorism that justice must be seen to be done: see the Hon JJ Spigelman, “Seen to be Done: The Principle of Open Justice” (2000) 74 ALJ 290. In Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46, the High Court observed at [44], that, “[t]he rationale of the open court principle is that court proceedings should be subjected to public and professional scrutiny, and courts will not act contrary to the principle save in exceptional circumstances”.
The weight of the authority indicates that the principle of open justice is not engaged immediately upon the filing of proceedings in a court. In Hogan, the High Court at [40] accepted as correct the conclusion of the primary judge that leave should not be granted to inspect, “material on the file of the Court but not tendered and admitted into evidence”, on the basis that, “the interests of open justice were not engaged”: see also Oldham v Capgemini Australia Pty Ltd (No 2) [2016] FCA 1101 at [31]. In John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 (John Fairfax), Spigelman CJ (the other members of the Court agreeing) held at [65]:
The principle of open justice is not engaged at the time of the filing of the
proceedings. It is only when relevant material is used in court that it becomes
relevant. As Slicer J put it in R v Clerk of Petty Sessions, Court of Petty
Sessions Hobart; Ex parte Davies Brother Ltd (at 293): “… The making of a
complaint, without more, is no more than a statement by a party (often the
state) that it wishes to have a particular grievance (public or private)
determined by a court…The making of a complaint does not attract the
requirement of ‘open justice’ unless and until it becomes an issue between the
parties”.
There are cases which treat the entitlement of the public to inspect documents on the Court’s file before they are used in court as part of the principle of open justice (see Llewellyn v Nine Network Australia Pty Ltd (2006) 154 FCR 293 at [28], Ferguson v Tasmanian Cricket Association (t/as Cricket Tasmania) [2021] FCA 1507 at [5]), but the weight of authority is to the contrary. Accordingly, the open justice principle is only engaged in respect of filed material when the material is used in court.
In John Fairfax, Spigelman CJ observed at [29] that, “[n]either the claimants, nor the public at large, have a right of access to court documents”, and that the principle of open justice, “does not create some form of freedom of information Act applicable to court”. However, all jurisdictions in Australia allow the public greater access to court documents through a right to inspect, or to apply to inspect, filed documents.
The respondent’s submission that granting a suppression order before the relevant documents have been used in Court would not “infringe” the open justice principle should be accepted to be correct in light of Hogan and John Fairfax. However, that provides only a partial answer to the question of whether s 37AE of the FCA Act has application in the present case.
In my respectful opinion, s 37AE of the FCA Act does not purport to confine the objective of safeguarding the public interest in open justice within the bounds of the open justice principle. The provision certainly does not do so in its terms. That the public interest in open justice may extend beyond the open justice principle is recognised by r 2.32(2) of the Rules.
Rule 2.32(2) confers an entitlement upon any member of the public to inspect the filed documents enumerated in that rule after the first case management hearing, subject only to any contrary order. In Llewellyn v Nine Network Australia Pty Ltd, Rares J explained the purpose the predecessor of r 2.32(2) at [28]:
The originating process and pleadings in proceedings initiated in a court of justice such as this Court with rules such as O 46 r 6, are intended by the rules of the Court to be available to the public. That is so that they may see what is the controversy brought to the court for resolution by it in its ordinary function as a court constituted under Ch III of the Constitution of the Commonwealth.
Rule 2.32(2) intends that the documents referred to in the rule should ordinarily be open to public scrutiny after the first case management hearing whether or not they have been used in court. In that way, the rule treats the public interest in open justice as extending beyond the bounds of the principle of open justice.
Section 37AE of the FCA Act requires that in deciding whether to grant a suppression order or 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. In my respectful opinion, the public interest in open justice encompasses the entitlement of members of the public under r 2.32(2) to inspect documents on the Court’s file. Accordingly, any detraction from that entitlement must be taken into account when deciding whether to grant a suppression order.
The overriding question in this case is whether a suppression order is necessary to prevent prejudice to the proper administration of justice. The respondent submitted that a suppression order is necessary to prevent prejudice to the proper administration of justice because there is a substantial public interest in the settlement of litigation, which could be frustrated if allegations which the parties have agreed should be kept confidential as part of their proposed settlement are exposed to public scrutiny. The respondent also relied on the fact that serious allegations are made in the documents against named persons who are not parties to the proceeding and have had no opportunity to defend themselves against the allegations.
As Raper J pointed out in Patterson v Westpac Banking Corporation (No 2), the authorities indicate that there is a very significant public interest in the settlement of litigation, particularly at an early stage. In Oldham v Capgemini Australia Pty Ltd (No 2), Mortimer J (as the Chief Justice was then) observed at [30]:
Second, the settlement of the proceeding strengthens the case to refuse access. In my opinion, and even in the absence of evidence about the precise terms of settlement of this proceeding, it would be inimical to the negotiation process which leads to the settlement of a proceeding in this Court, its discontinuance without judicial pronouncement of any kind, and the accompanying closing of the Court’s file with no further proceedings in open court, for a sensitive document such as the AHRC Complaint to be released over an applicant’s opposition. It would not be unusual for parties (not just applicants) in proceedings such as this to have as one of the motivations for settlement a desire to keep from the public gaze detailed factual allegations of the kind which are frequently set out in complaints made to the Commission. The Court should be mindful not to frustrate these consequences of settlement which may be in the contemplation of parties when they agree to resolve a proceeding by agreement.
I accept that allowing non-parties access to documents filed by the parties which disclose serious and detailed allegations that the parties have agreed should remain confidential would tend to undermine one of the purposes of settlement. However, it is necessary to examine each of the documents to determine whether, and to what extent, they answer that description.
I will first consider the Statement of Claim. The parties have agreed that the proposed settlement should be subject to a confidentiality clause. I infer that a purpose of settlement is to avoid public scrutiny of the untested allegations made in the Statement of Claim. That purpose would be undermined by allowing non-parties to inspect the Statement of Claim and is a relevant and significant factor to be taken into account.
The Statement of Claim makes detailed allegations of sexual harassment by a named employee of the respondent and allegations of victimisation by another named employee. As a general proposition, mere embarrassment is not enough to warrant a suppression order: Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) (2015) 331 ALR 68; [2015] FCA 607 at [30]; Chen v Migration Agents Registration Authority (No 1) [2016] FCA 649 at [11]. However, in McLaughlin v Glenn [2020] FCA 679, Abraham J at [30] considered it significant that allowing public access to the Statement of Claim would prejudice or disadvantage the respondents when they had not had any opportunity to answer the allegations.
In this case, the employees accused of sexual harassment and victimisation are not parties to the proceeding and have not had the opportunity to answer the serious allegations made against them and defend themselves. I do not consider that redacting the names of the employees would adequately protect their identities given the surrounding facts pleaded in the Statement of Claim. It would be unfairly prejudicial to the employees for the Court to allow the public to have access to, and be free to publish, the untested allegations made in the Statement of Claim.
While recognising the policy of r 2.32(2) of the Rules that the pleadings should ordinarily be open to public scrutiny after the first case management hearing, when the combination of factors just discussed is considered, a suppression order in respect of the Statement of Claim is, in my opinion, necessary to prevent prejudice to the proper administration of justice.
The position is the same in respect of the Defence. If access were allowed to the Defence, it would reveal the content of many of the allegations made in the Statement of Claim.
The affidavit of Patrick Turner annexes both the Statement of Claim and the Defence. It also annexes correspondence from the Australian Human Rights Commission (AHRC) providing reasons for its decision to terminate the applicant’s complaint. The reasons attach the applicant’s complaint, which was made against both the respondent and an employee who is not a party to the current proceeding. In Oldham v Capgemini Australia Pty Ltd (No 2), Mortimer J held at [28] that, “the confidentiality of the AHRC process, with its concomitant public interest considerations, would be significantly undermined by the release of an AHRC complaint, unless an applicant consents”. I respectfully agree. In addition, there is no entitlement to inspect an affidavit under r 2.32(2), but only an entitlement to apply for leave to inspect an affidavit under r 2.32(4). The fact that Mr Turner’s affidavit has not been read in open court would be a strong factor against any application for leave: see Baptist Union of Queensland – Carinity v Roberts (2015) 241 FCR 135 at [29]. In these circumstances, a suppression order in respect of the affidavit of Mr Turner is necessary to prevent prejudice to the proper administration of justice.
The position is different in respect of the applicant’s Genuine Steps Statement. That document merely indicates that the applicant lodged her complaint with the AHRC; the respondent was provided with a copy and the applicant was provided with the respondent’s response; that the parties participated in a conciliation conference; and that the parties exchanged offers of settlement but were unable to come to an agreement. The document reveals nothing about the allegations made, nor the terms of the offers exchanged. I consider that a suppression order in respect of the Genuine Steps Statement is not necessary to prevent prejudice to the proper administration of justice.
The argument at the hearing was principally concerned with whether a suppression order should be made in respect of the applicant’s Originating Application. It may be noted that r 34.163(2) of the Rules requires that an Originating Application commencing a proceeding under the Australian Human Rights Commission Act 1986 (Cth) be “accompanied by” a copy of the original complaint to the AHRC and a notice of termination of the complaint. In McLaughlin v Glenn, Abraham J held at [12] that the AHRC complaint accompanying an Originating Application does not form part of the Originating Application.
The applicant’s Originating Application reveals the nature of the relief sought and the basis for seeking that relief. If a suppression order were made in respect of that document, a person inspecting the file would not be able to understand what the proceeding was about. All that would be revealed is that a proceeding was commenced and later discontinued.
It is the case that inspection of the Originating Application would reveal that the applicant alleged that she had been unlawfully sexually harassed and victimised and the respondent was vicariously liable for that conduct. However, an inspection of the Originating Application would reveal no detail of the allegations made (subject to one matter which I will discuss later). An inspection of the file would also reveal that the applicant had discontinued the proceeding.
There was no submission made, let alone any evidence, that the confidentiality clause would prevent the parties from disclosing the mere fact that the applicant commenced a proceeding alleging that she had been unlawfully sexually harassed and victimised and the respondent was vicariously liable. There is no evidence that allowing inspection of the Originating Application might discourage or undermine the proposed settlement. Further, it would be a significant matter to deprive members of the public of their ordinary entitlement to inspect the Originating Application after the first case management hearing.
In any event, the respondent did not seek suppression of the transcript of the hearing. A non-party may inspect a transcript pursuant to r 2.32(2)(m) of the Rules. The transcript would reveal that the applicant alleged that she had been unlawfully sexually harassed and victimised and the respondent was vicariously liable. In these circumstances, subject to one matter which I will discuss, a suppression order in respect of the Originating Application would serve no useful purpose.
The Originating Application does contain the name of the employee against whom the allegation of victimisation was made. For the reasons I have already given, it is necessary for the name of that person to be protected from disclosure to prevent prejudice to the proper administration of justice. The most efficacious course is to make a suppression order in respect of the already filed Originating Application subject to the applicant filing another version redacting the name of the employee. The applicant has undertaken to do so. The redacted version will not be the subject of any suppression order and will be available for inspection by the public.
The orders made on 19 August 2024 have since been varied to remove the Genuine Steps Statement from their coverage and to add a time limit for the suppression order.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah. Associate:
Dated: 29 August 2024
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