Sheila Mary Rimmer v Ormond College Council

[1995] IRCA 435

CATCHWORDS

INDUSTRIAL LAW - PRACTICE AND PROCEDURE - Application for suppression - Name of applicant and respondent to be suppressed - Whether or not prejudice to the administration of justice - Balance between prejudice to the parties and countervailing public interest in open justice.

Industrial Relations Act 1988 s170EA
Federal Court of Australia Act 1976 s50

Australian Broadcasting Commission v Parish (1980) 43 FLR 129

SRD v Australian Securities Commission (1994) 123 ALR 730

Commissioner of Australian Federal Police v Cox (1989) 87 ALR 163

No. VI 4407 of 1995

SHEILA MARY RIMMER v ORMOND COLLEGE COUNCIL

Marshall J
Melbourne
1 September 1995

IN THE INDUSTRIAL RELATIONS COURT               )  

)
OF AUSTRALIA  )  
  )  No. VI 4407 of 1995
VICTORIA DISTRICT REGISTRY  )  

BETWEEN:  SHEILA MARY RIMMER

Applicant

AND:  
  ORMOND COLLEGE COUNCIL

Respondent

JUDGE:     Marshall J

PLACE:     Melbourne

DATE:       1 September 1995

ORDER

THE COURT ORDERS THAT:

1.     The respondent’s motion, notice of which was given on 31 August 1995, is dismissed.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT               )  

)
OF AUSTRALIA  )  
  )  No. VI 4407 of 1995
VICTORIA DISTRICT REGISTRY  )  

BETWEEN:  SHEILA MARY RIMMER

Applicant

AND:  
  ORMOND COLLEGE COUNCIL

Respondent

JUDGE:     Marshall J

PLACE:     Melbourne

DATE:       1 September 1995

EX TEMPORE REASONS FOR JUDGMENT

In this matter the respondent has moved the Court for orders as follows:

“1.That all papers on the file of the Court be kept confidential to the parties.

2.That the names of the Applicant and the Respondent be removed from the public record and replaced with the letters X and Y.

3.That there be no order as to costs.”

As the applicant consents to the making of orders in the above terms, the Court was so moved without the respondent’s filing of a notice of motion.  See Order 19 rule 2(2)(b) of the Industrial Relations Court Rules.

Oral evidence was called by the respondent to support the making of the orders sought; especially proposed orders 1 and 2 above.  The effect of such evidence was as follows:-

1.The respondent has been over-exposed to media attention as a result of what was known as the “Gregory affair”, which became the subject of a recent book by Ms Helen Garner.

2.The respondent has grave concerns that its viability may be affected by further adverse publicity.

3.The respondent is concerned about potential disruption to its students and harassment of them by the media.

The application, the subject of the orders sought, was filed by the applicant on 21 August 1995 pursuant to s170EA Industrial Relations Act 1988. The applicant also sought to invoke the accrued jurisdiction of the Court to obtain damages at common law for wrongful dismissal and breach of the respondent’s “duty of trust and confidence”. On 30 August 1995 the respondent’s solicitors filed a notice of appearance on its behalf. On the same day the applicant’s solicitors filed a notice of discontinuance. Additionally on the same day the respondent’s solicitors wrote to the Registrar of the Court and advised that the matters in dispute had been resolved. The consent order referred to above was enclosed. The letter stated, in part, that:

“The matters in dispute between the parties have now been resolved.

The parties desire that these orders be made as soon as possible to protect both the Applicant and the Respondent from any adverse publicity.”

Also, on 30 August 1995, Judicial Registrar Chancellor declined to make the consent orders sought as it was his view that what was before him was “[i]nappropriate to be dealt with as a consent matter”.

Additionally on 30 August 1995, the District Registrar advised the respondent’s solicitors of the Judicial Registrar’s view and stated that:

“It is open to you to make application to the Court for the orders sought by way of notice of motion supported by affidavit: see Order 19.”

On 31 August 1995 the solicitors for the respondent replied to the District Registrar in the following terms:-

“Case VI95/4407

Thank you for your letter of 30 August.

In view of the consent orders having been signed by the parties and the nature of the application and subject to any further direction from you we would now wish to proceed as follows:

1.Pursuant to Order 19 Rule 2(2)(b) the application be made without any notice of motion being filed and served.

2.In the absence of the Applicant.

3.On the basis of oral evidence to be provided by the Respondent.

4.Without any public notification being made of the application.

5.That otherwise orders be made dispensing with such of the requirements of the rules as may now allow for the above.

If this procedure is agreeable to you we would be glad if you could advise us of a suitable time for the hearing of the application.”

Late yesterday afternoon the Court agreed to list the matter for hearing for 2.15 pm today on the basis outlined in the letter.  The Court did have reservations about not listing the matter in the usual way via the Court list.  The competing interests were on the one hand the fact that such listing would have severely prejudiced the parties’ application and on the other hand the concern of the Court that its lists may be seen to be censored by the parties.

Ultimately,  by the time a final view could be taken as to those competing interests, the Court list had already been prepared.

The issues before  the Court today also involve questions of competing principles.  On the one hand, there is the desire of the parties, subject to their own consent arrangements, not to be further exposed to “adverse publicity”.  On the other hand, there is the right of the public to have access to documents which are public in nature.  Apart from affidavits and the like documents, which may or may not be sought to be relied upon in Court, all Court records are public documents.  In my view, exceptional circumstances are required for the Court to find that some or all of such documents should not be on the public record.  In the circumstances, the Court should be very wary of making invisible the now visible fact that there was a claim which sought to invoke the Court’s jurisdiction both statutory and accrued.

There is nothing on the Court file other than that identified above with the exception of correspondence to each party from the Court advising of the claim and the need for a notice of appearance.

Section 480 of the Act (which is identical to s50 Federal Court of Australia Act 1976) provides as follows:

“480      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.”

It gives the Court the jurisdiction to make the second order sought, i.e. to remove the name of the parties from the documents on the Court file.  The first order, as to confidentiality of the file, is only supportable by reference to “evidence”.  There is no “evidence” as such on the Court file.  Although for the purposes of this matter, I will treat all on the Court file as “evidence”.

It is noteworthy that such an order is only permitted “in order to prevent prejudice to the administration of justice or the security of the Commonwealth”.

It is difficult to see how the administration of justice is prejudiced if the orders sought today are not made.  There is nothing on the Court file which may expose a person to criminal proceedings.  Compare Commissioner of Australian Federal Police v Cox (1989) 87 ALR 163. There is nothing on the Court file which is of a confidential nature in and of itself. The principle of open justice should not be interfered with unless for good and sufficient reason.

As Bowen CJ said in ABC v Parish (1980) 43 FLR 129, 133-134:

“Open justice is the underlying assumption of s. 50, not the criterion it prescribes. The section refers to preventing ‘prejudice to the administration of justice’. This is not a reference to the need to preserve open justice. It is, as I have already suggested, a reference to another public interest, that is, the public interest that the court should endeavour to achieve effectively the object for which it was appointed: to do justice between the parties.

It is not possible to define in advance the degree of prejudice to the administration of justice, which will justify the making of an order under s. 50. The collocation of the alternative phrase ‘security of the Commonwealth’ suggest Parliament was not dealing with trivialities. The case where failure to make an order under s. 50 would lead to the destruction of the very subject matter of the suit would seem to be the kind of case which might ordinarily attract the exercise of the discretion. The refusal to make an order in such a case might well defeat the purpose of achieving justice between the parties and disappoint the public interest in having the court deal responsibly with the confidential affairs of citizens.

Section 50 says the court may make such order forbidding or restricting publication of certain things as appears to the court to be necessary in order to prevent prejudice to the administration of justice. In exercising this discretion, I am of opinion the court should also take into account what s. 50 does not mention in terms but what is the underlying assumption upon which it is based, namely, the principle of open justice. The English language does not readily provide the means of describing the process by which this is taken into account. It is a process of judgment. A useful metaphor is that of weighing in the scales the various factors involved. It might be said the process is more complex than such a metaphor would suggest (see Science Research Council v. Nasse [1979] 3 WLR at p. 771); but that metaphor is the best available.

See also SRD v Australian Securities Commission (1994) 123 ALR 730, per Hill J. At 734, His Honour said:

“The function of open justice allows the public to know accurately what and who is the subject of the court’s proceedings.  A corollary is that it allows the public to know who and what is not subject to those proceedings.  Accurate knowledge of such things prevents unwarranted suspicion or speculation as to the court’s business, which suspicion or speculation might embarrass or prejudice others engaged in the same professional field but not the subject of proceedings before the board.

There is also much to be said for the view that the public confidence in the fair operation of the legal system could be lessened were I to make orders as requested.  The continued suppression of the name of the accountant and his firm gives rise to the appearance of special treatment or discrimination by the court to persons of a particular group or status.  I use the word ‘status’ both in the sense of referring to registration of accountants as auditors or liquidators under the Law and in the sense of the standing obtained through the participation in the profession of accountancy, a profession in which the community places trust and confidence.”

The making of the orders sought here, in my view,  should be refused.  They do not serve the administration of justice and they offend against the principle of open justice.  Their making would give rise to the appearance of special treatment being given to the parties by the Court.

I therefore order as follows:

1.The respondent’s motion, notice of which was given on 31 August 1995, is dismissed.

I certify that this and the preceding 5 pages are a true copy of the Reasons for Judgment herein of his Honour Justice Marshall.

Associate:

Date:  1 September 1995

Solicitor for the Respondent:            Mr M Redfern

Date of hearing:   1 September 1995

Date of judgment:   1 September 1995