Schröder-Turk v Murdoch University

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FEDERAL COURT OF AUSTRALIA

Schröder-Turk v Murdoch University [2019] FCA 1152

File number: WAD 303 of 2019
Judge: JACKSON J
Date of judgment: 29 July 2019
Catchwords: PRACTICE AND PROCEDURE - confidentiality of proceedings - s 16 of Public Interest Disclosure Act 2003 (WA) - direction made requiring notice of possible effect of provision to be affixed to court documents
Legislation:

Fair Work Act 2009 (Cth) ss 340, 545, 562, Part VAA Div 2

Federal Court of Australia Act 1976 (Cth) ss 21, 23

Federal Court Rules 2011 (Cth) r 2.32

Evidence Act 1906 (WA) ss 20A-20M

Murdoch University Act 1973 (WA) s 5

Public Interest Disclosure Act 2003 (WA) ss 3, 5, 7A, 15, 16

Witness Protection Act 1991 (Vic) s 10(7)
Cases cited:

Australian Competition and Consumer Commission v Oakmoore Pty Ltd (No 2) [2018] FCA 1170

Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1

CDJ v VAJ (No 1) [1998] HCA 67; (1998) 197 CLR 172

Chairperson of the Royal Commission into the Management of Police Informants v Chief Commissioner of Victoria Police [2019] VSCA 154

Chief Commissioner of Police v ABC (2010) 31 VR 176

Deputy Commissioner of Taxation v Hawkins (Inspection Application by Matrix Group and Anor) [2016] FCA 164; (2016) 341 ALR 255

Fencott v Muller (1983) 152 CLR 570

Kizon v Palmer (1997) 72 FCR 409

Parker v Australian Building and Construction Commissioner [2019] FCAFC 56; (2019) 365 ALR 402

R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141

R v JP [2008] VSC 86

Re an Application under section 10 of the Witness Protection Act 1991 [2018] VSC 810

Rizeq v Western Australia [2017] HCA 23; (2017) 262 CLR 1

Van Stokkum v The Finance Brokers Supervisory Board [2002] WASC 192
Date of hearing: 17 July 2019
Date of last submissions: 18 July 2019 (Applicant)
24 July 2019 (Respondent)
Registry: Western Australia
Division: Fair Work Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 75
Counsel for the Applicant: Mr CJ Tran
Solicitor for the Applicant: Maurice Blackburn Lawyers
Counsel for the Respondent: Mr NK Stewart
Solicitor for the Respondent: Minter Ellison

ORDERS

WAD 303 of 2019
BETWEEN:

GERD SCHRÖDER-TURK

Applicant
AND:

MURDOCH UNIVERSITY

Respondent

JUDGE:

JACKSON J

DATE OF ORDER:

29 JULY 2019

THE COURT ORDERS THAT:

1.All documents filed in court by the parties must contain, on the front page (being the page immediately after the court-generated cover sheet), in font no smaller than the font used in the rest of the document, the following:

IMPORTANT NOTICE:  PLEASE READ

Any non-party, including any member of the public, who seeks or has access to this document should consider obtaining legal advice before disclosing any information in, from, or concerning this document.  The applicant in this proceeding makes a claim pursuant to the Public Interest Disclosure Act 2003 (WA).Sections 16(1) and (3) of that Act contain prohibitions on disclosure that may apply.  The penalties for…

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Details
Case
[2019] FCA 1152
Decision Date

CaseChat Overview and Summary

The case of Schröder-Turk v Murdoch University involved a dispute before the Federal Court of Australia. The applicant, Schröder-Turk, sought orders to permit disclosure of certain information without contravening sections 16(1) and (3) of the Public Interest Disclosure Act 2003 (WA). The legal issues before the court centred on the interpretation and application of the PID Act, specifically whether the court could make orders that would permit disclosure of information that might otherwise contravene the Act, and whether the court had the power to grant such orders under section 23 of the Federal Court Act or section 16(3)(e) of the PID Act.

The court examined the objects of the PID Act and the need to protect the identity of persons in respect of whom a disclosure under the Act has been made. The court held that it would not be exercising the discretion judicially to grant a blanket exemption from section 16(3), unlimited as to time and divorced from any consideration of the particular circumstances that may apply to particular disclosures. The interests of the administration of justice did not require such an exemption, and the PID Act would be permitted to operate according to its terms.

The court made orders requiring that all documents filed in court by the parties must contain a prominent notice on the front page regarding the potential application of sections 16(1) and (3) of the PID Act. The applicant was also required to uplift from the court file all documents that had been filed to date and refile them with the notice affixed. The interlocutory application was otherwise dismissed, but each party was granted liberty to apply in relation to the subject matter of the interlocutory application on three days' written notice to the other party. The parties were also required to confer and file a minute of consent orders in relation to disclosure to legal advisers for the purposes of these proceedings, and in relation to the costs of the application.

Orders

Orders of the court

1. All documents filed in court by the parties must contain, on the front page (being the page immediately after the court-generated cover sheet), in font no smaller than the font used in the rest of the document, the following:

IMPORTANT NOTICE: PLEASE READ

Any non-party, including any member of the public, who seeks or has access to this document should consider obtaining legal advice before disclosing any information in, from, or concerning this document. The applicant in this proceeding makes a claim pursuant to the Public Interest Disclosure Act 2003 (WA).Sections 16(1) and (3) of that Act contain prohibitions on disclosure that may apply. The penalties for breach of those prohibitions include substantial fines and/or imprisonment.

Neither the parties nor the Court offer any legal advice in this regard, and should not be taken to do so by affixing this notification to this document. This notification has been affixed to this document pursuant to an order made by the Honourable Justice Jackson on 29 July 2019 that such a notification should be affixed to all documents filed in this proceeding.

THIS NOTICE IS TO BE ATTACHED, AND REMAIN ATTACHED, TO ANY COPY OF THIS DOCUMENT.

2. The applicant must, within 7 days from the date of this order, uplift from the court file all documents that the applicant has filed in court to date and refile them with the notice set out in the preceding paragraph affixed to the front page of each.

3. The interlocutory application filed on 14 June 2019 is otherwise dismissed.

4. Each party has liberty to apply in relation to the subject matter of the interlocutory application on 3 days' written notice to the other party.

5. By 4.00 pm on Monday 5 August 2019 the parties must confer and file a minute of consent orders in relation to disclosure to legal advisers for the purposes of these proceedings, and in relation to the costs of the application (or, if agreement cannot be reached, separate minutes).

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Perhaps the greatest level of risk of inadvertent breach at present is that another non-party seeks access to documents on the court file without being aware of the possible application of s 16(3) of the PID Act. As I have said, r 2.32 of the Federal Court Rules provides a mechanism by which that risk may be addressed appropriately, on a case by case basis, in so far as the documents are not in the class of documents to which the court routinely gives access without leave. In relation to that latter class, and even in relation to documents where leave to inspect is required, it seems to me that the risk is addressed appropriately by directing that when a party files a court document, the first page of the document contain a prominent notice as to the issue. With this possibility in mind, at the hearing I directed the parties to bring in minutes or, preferably, an agreed minute of wording appropriate for that purpose. They were able to reach agreement and that wording, with some modifications, is reflected in the orders I will make.Conclusion and orders Weighing in favour of the orders sought is the risk to third parties and the fact that unrestricted access to the statement of claim is already available to members of the public, without objection from the University. But I must give due regard to the objects of the PID Act which relevantly include the obvious objective of s 16(3), to protect the identity of any persons in respect of whom a disclosure under that Act has been made. In my view it would not be exercising the discretion judicially, and consistently with the judicial process, to impair the achievement of those objects by granting what would, in effect, be a blanket exemption from s 16(3), unlimited as to time and divorced from any consideration of the particular circumstances that may apply to particular disclosures. The interests of the administration of justice do not require that I do so; in the absence of the exemption, the PID Act will be permitted to operate according to its terms and at this stage I do not see that this will unduly hamper the conduct of the proceedings. I will, as I have said, make a direction drawing attention to the potential risks in relation to documents on the court file. I will also make that direction in relation to the documents that have already been filed, requiring them to be uplifted and re-filed with the notice added. The risks associated with evidence led and submissions made in open court, and the publication of reasons and judgments, can be addressed as and when they arise. They can be addressed, as they should be, by reference to what is proposed to be disclosed, by whom, to whom, on what occasion and in what circumstances. I see no reason to think at this point that this will result in frequent applications for such orders, so as to impose an unworkable administrative burden for the parties or the court. But I might turn out to be wrong about that. For that reason, I will grant liberty to apply. If the present orders prove impracticable, they can be varied or further orders can be made.

Ratio Decidendi

Legal Principle Established

Ultimately, it is not necessary to resolve any of these doubts for the purposes of this interlocutory application. For reasons set out below, I decline to make the order sought by the applicant, whether the power arises under s 23 of the Federal Court Act or under s 16(3)(e) of the PID Act. I will assume, favourably to the applicant (and without deciding), that the discretion to make the orders sought is broad and that the PID Act does not relevantly fetter or otherwise limit that discretion, as such. Even on those assumptions, it is surely incontrovertible that the objects of the PID Act and of s 16 are relevant factors to take into account when exercising the discretion. That is consistent with the quote from Parker which I set out above. It is also incontrovertible that, as Gaudron J observed in CDJ v VAJ (No 1), any broad discretion reposed in the court must be exercised judicially and consistently with the judicial process. As will be seen, in my view those principles are sufficient to dispose of the application.Consideration of the applicant's submissions The applicant filed written submissions in support of the application. With respect, I had difficulty understanding how some aspects of those submissions were relevant to the order sought. For example, the applicant relied on provisions in Part VAA, Div 2 of the Federal Court Act, which concerns the court's powers to make suppression and non‑publication orders. It may be that the principles of open justice referred to there, in particular in s 37AE, bear on the exercise of the discretion that arises here. But in the present case, no one is yet seeking suppression of anything, so there is no need for anyone to discharge the 'heavy onus' which, I accept, must be discharged before any order under Div 2 can be made: see eg Australian Competition and Consumer Commission v Oakmoore Pty Ltd (No 2) [2018] FCA 1170 at [22]. In any event, the crux of the applicant's written submissions was that for various reasons, orders should be made 'to permit disclosure without the threat of contravention of s 16(1) or (3) lingering in the air'. Since, as I have said, the applicant has given his consent for the purposes of s 16(1)(a), it is only the possibility of a contravention of s 16(3) that might linger. The written submissions advanced five reasons why the order sought should be made. I will comment on each in turn. First, the applicant submitted that this will be the first case considering the operation of the PID Act, so there is a public interest in favour of an open court and not a closed court or suppression. But, as I have said, at this point no one is seeking a closed court, or suppression of anything. I accept that the principle of open justice is fundamental to the operation of this court, but I am not persuaded at present that allowing the PID Act to operate according to its terms, in relation to information that is disclosed or proposed to be disclosed in the course of these proceedings, is inconsistent with that principle.