Spiteri v IBM Australia Ltd
[2011] FCA 1318
•14 October 2011
FEDERAL COURT OF AUSTRALIA
Spiteri v IBM Australia Ltd [2011] FCA 1318
Citation: Spiteri v IBM Australia Ltd [2011] FCA 1318 Parties: SUSAN SPITERI v IBM AUSTRALIA LIMITED, TROY WILLIAMS, STEPHEN SLUGA and MS JOANNE FRYER File number: VID 1134 of 2011 Judge: JESSUP J Date of judgment: 14 October 2011 Legislation: Australian Human Rights Commission Act 1986 (Cth)
Federal Court of Australia Act 1976 (Cth)
Sex Discrimination Act 1984 (Cth)Date of hearing: 14 October 2011 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 14 Counsel for the Applicant: Ms S Keating Solicitor for the Applicant: Maurice Blackburn Lawyers Counsel for the Respondents: Ms J Firkin Solicitor for the Respondents: Blake Dawson
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1134 of 2011
BETWEEN: SUSAN SPITERI
ApplicantAND: IBM AUSTRALIA LIMITED
First RespondentTROY WILLIAMS
Second RespondentSTEPHEN SLUGA
Third RespondentMS JOANNE FRYER
Fourth Respondent
JUDGE:
JESSUP J
DATE OF ORDER:
14 OCTOBER 2011
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The affidavit which is folio 7 on the court file, sworn 13 October 2011, not be published or disclosed to any person and be sealed and marked “confidential” on the court file.
2.The transcript of this proceeding be made available to no person without the leave of the court.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1134 of 2011
BETWEEN: SUSAN SPITERI
ApplicantAND: IBM AUSTRALIA LIMITED
First RespondentTROY WILLIAMS
Second RespondentSTEPHEN SLUGA
Third RespondentMS JOANNE FRYER
Fourth Respondent
JUDGE:
JESSUP J
DATE:
14 OCTOBER 2011
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This proceeding, which comes before me this afternoon for interlocutory relief, was commenced today under s 46PO of the Australian Human Rights Commission Act 1986 (Cth). In her Statement of Claim, the applicant alleges harassment and discrimination against her by her employer, the first respondent, which would be unlawful under the Sex Discrimination Act 1984 (Cth). She has joined to her proceeding three individual supervisors against whom she alleges a failure to act to prevent the unlawful conduct alleged occurring. The individual by whom that allegedly unlawful conduct is said to have been engaged in is not a party to the proceeding.
The first respondent now moves for orders under s 50 of the Federal Court of Australia Act 1976 (Cth) forbidding the publication of the names of the applicant and of the three individual respondents, and for orders that those parties should henceforce be identified by designations in the way of pseudonyms.
Counsel for the first respondent was frankly unable to propose any sufficient basis for a s 50 order in relation to the name of the applicant herself. As it happens, not only does the applicant not seek any such protection, she resists the making of any of the s 50 orders sought by the first respondent. In the circumstances, I would not make a s 50 order in relation to the name of the applicant.
It remains to be considered whether such an order should be made in relation to the names of the three individual respondents. I should emphasise that the applicant does not allege in her Statement of Claim that any of those respondents directly engaged in any conduct which would be unlawful under the Sex Discrimination Act. Rather, the case against them is that they failed to act to prevent the particular perpetrator from engaging in the conduct which was said to be unlawful on his part. On a fair reading, therefore, the allegations of the applicant do not relate to the direct participation of the individual respondents in unlawful acts, as distinct from omissions.
Notwithstanding that circumstance, it is said on behalf of the first respondent that a s 50 order ought to be made, in the discretion of Court, because of the prospect of the individual respondents being deterred from defending the proceeding if they were publicly identified as parties to it. In an affidavit sworn today, the respondents’ solicitor said that he had been instructed by the Human Resources Director of the first respondent that the latter is concerned about the likely distress and potential damage to professional reputations that would be caused to the individual respondents from their public identification in this proceeding and from further media attention. He says that, in his view, considerations of that kind may deter the first respondent from fully defending itself and its officers in this proceeding, and that there is a real risk, not only that the first respondent, but that also that the individual respondents, may be deterred from fully defending the proceeding, unless the s 50 orders are made.
The background to this proceeding, as is necessarily the case under the Human Rights Act, is that the allegations of the applicant have been subject to the investigatory and settlement procedures before the Human Rights Commission. It has only been in consequence of the failure of those procedures to bring about a settlement between the parties that the applicant has taken the opportunity to commence this proceeding. When the applicant first raised her allegations in the Commission, on the evidence before me (and it is the first respondent’s case), she secured considerable media publicity for the allegations which she made. Insofar as the nature of the conduct alleged by the applicant is concerned, she appears to have fired her most powerful shots, as it were, on that occasion when she informed the media of the type of conduct which had been allegedly carried out against her. However, at that time, she did not identify herself and she did not identify the individual respondents. Notwithstanding that circumstance, no doubt because of the considerable international standing of the first respondent, the complaints made by the applicant received widespread publicity in the media, I am told, not only in this country, but also overseas. It is put, therefore, that the media is keenly alert to the circumstances of this case and to the potential for it to generate interest. I am invited to infer that, once this proceeding is dealt with in the conventional way in the registry of the Court, the media will ensure that publicity is given to it, to the applicant’s allegations and, if they are named, to the persons against whom the proceeding is brought.
The difficulty with the first respondent’s case, insofar as it relies upon those considerations, is that the kind of complaint which the applicant makes is dealt with in two stages. There seems to be a recognition that complaints of this kind are best resolved at the level of the Commission. There seems also to be a recognition, at that level, that matters might well benefit from being kept confidential. However, once that level of process has proved unfruitful, the reality is that the applicant, as with any other complainant in such a system, has brought her case into the mainstream courts and her complaint must be dealt with in the same way as any other civil litigation in those courts. The fundamental premise upon which this Court operates, as stated in s 17 of the Federal Court Act, is that it operates in open court and that there has to be a good reason for the Court to make an order of the kind presently sought. The only circumstances in which such an order can be made under s 50 is that it is necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth.
The basis upon which the first respondent makes its application this afternoon is that a s 50 order is necessary to prevent prejudice to the administration of justice, in the sense that, if the three individual respondents are to be identified, the attendant publicity is likely to be hurtful and embarrassing to them, possibly even damaging to their reputations at the general level, to such an extent that they might be deferred from defending this case. Quite how they would be deferred from defending it has not been made completely clear, but I am prepared to accept that the first respondent’s case is that they might be more inclined to reach a settlement, which would not be in accordance with the underlying justice of the matter, than if the proceeding were kept confidential.
It must be asked, however, what puts a case such as this, or indeed what puts this actual case, out of the ordinary run of cases in which oftentimes serious and possibly offensive and hurtful allegations are made against individuals. Yet it is not simply by the existence of those circumstances that a presumptive right to have one’s name withheld from the public record is established. It is a matter of common experience that individuals are proceeded against in circumstances where fraud is alleged, in circumstances where negligence is alleged, and in circumstances where professional malpractice is alleged. There obviously needs to be something more than this in order to justify a court departing from the important principle that the justice which it dispenses is done in the glare of the public eye and is exposed to the attention of the media.
Counsel for the first respondent submitted that the thing which puts this particular case out of the mainstream of cases in which serious allegations are made against individuals is that the applicant has previously chosen to seek, and has obtained, very widespread publicity for the allegations she makes, and for the details of them. For my part, I cannot see why that makes it more likely that a s 50 order is necessary in order to prevent prejudice to the administration of justice. I would think it an unusual case in which the making of such an order would depend not upon the inherent merits of the case for such an order, but rather upon the perceived reaction of the media to the particular allegations made in the case in question. I should say that the media does perform an important function in our society and the openness of court proceedings is given significance by the free and energetic media, which we have. I would be reluctant to infer that someone would be deterred from defending serious allegations made against him or her only by the prospect that those allegations might get a wide airing in the media. I am also, I think, obliged to work upon the assumption that the media would act responsibly, and would appreciate that the allegations made against these three individual respondents are of failing to act in an appropriate way to prevent someone who is not a party from taking direct action in breach of the Sex Discrimination Act. I feel sure that if the applicant herself takes any step in relation to the media, that distinction will be made clear.
If the proposition that the individual respondents would be deterred from defending themselves against the allegations made by the applicant were correct, it would seem to continue to be so, not only at the present time, but hereafter, until the proceeding has reached its conclusion. Counsel for the first respondent has stressed that if an order of that kind were made today, it could be reviewed, it could be revoked or it could be varied at any time in the future, on the discretion of the Judge to whom an application in that regard were made. That may be so as a pragmatic consideration, but for my own part, I cannot see that it depreciates to any extent that the force of the consideration that it would be a strange thing if litigation were to be conducted on the footing that a respondent should have his or her identity kept secret, simply in order to protect his or her sensibilities in relation to the conduct of the defence, as such. If such a consideration were sound - I should say that I do not think it is – I could not see how it would do other than lead to the prospect that the order would, in effect, have to stay in place until the proceeding was completed. In my opinion, that would be a very strange way of proceeding in this Court.
For those reasons, I am not satisfied that it is necessary, in order to prevent prejudice to the administration of justice that the s 50 order sought by the first respondent be made. However, before I conclude my consideration of this application, I shall refer to the particular circumstances of one of the individual respondents.
Counsel for the first respondent has read an affidavit of that respondent, sworn yesterday, in which he deposes to circumstances personal to himself which are unrelated to those upon which the first respondent relies at the general level. Those personal circumstances are such that it does appear to be a reasonable anticipation that publicity given to his status in this proceeding might have a particular impact upon him and his family. Because the matter is confidential, and because I propose to accede to the application made by counsel of the first respondent that this affidavit be marked confidential in any event, I shall not go into the detail of this matter. I can understand how that respondent would consider that publicity given to him personally, and to his role in this case, might have very unhappy consequences for him.
Whilst it is easy to feel sympathy with the third respondent in that regard, and while I would accept that it would be something of a tragedy if his personal arrangements were disturbed by the commencement of this case, I nonetheless think that they are not such that fit the description in s 50 of the Federal Court Act. In part, that is because I cannot see how that respondent would not be under an obligation to disclose to responsible persons involved in the matters referred to in the affidavit the existence of this proceeding. In part also, it is because I am just not satisfied that the particular matter referred to in his affidavit touches the questions with which s 50 is concerned.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate:
Dated: 1 December 2011
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