State of New South Wales (Justice Health) v Dezfouli
[2008] NSWADTAP 69
•5 November 2008
Appeal Panel - Internal
CITATION: State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69 PARTIES: FIRST APPELLANT
State of New South Wales (Justice Health)SECOND APPELLANT
RESPONDENT
XXXX
Saeed DezfouliFILE NUMBER: 089045 HEARING DATES: 22 August 2008 SUBMISSIONS CLOSED: 22 August 2008
DATE OF DECISION:
5 November 2008BEFORE: Chesterman M - Deputy President; Smyth M - Judicial Member; O'Sullivan M - Non-Judicial Member CATCHWORDS: Order suppressing identity of party – open justice DECISION UNDER APPEAL: Dezfouli v State of New South Wales (Justice Health) and anor (No 2) [2008] NSWADT 155 FILE NUMBER UNDER APPEAL: 081014 DATE OF DECISION UNDER APPEAL: 05/28/2008 LEGISLATION CITED: Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Chiropractors and Osteopaths Act 1991
Federal Magistrates Act 1999 (Cth)CASES CITED: Australian Securities and Investments Commission v PTLZ [2008] FCAFC 164
Building Professionals Board v Hans (GD) [2008] NSWADTAP 13
Commissioner of Police, New South Wales Police v LZ [2008] NSWADTAP 26
Dezfouli v State of New South Wales (Justice Health) and anor [2008] NSWADT 122
Dezfouli v State of New South Wales (Justice Health) and anor (No 2) [2008] NSWADT 155
Fomiatti v University of Western Sydney [2005] NSWADT 245
Herald & Weekly Times Ltd v Medical Practitioners Board of Victoria, unreported, Supreme Court of Victoria, 10 June 1998, Hedigan J (BC9802329)
John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465
John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131
Lawrance v Commonwealth of Australia & Ors [2006] FMCA 1792
Lloyd v TCN Channel Nine Pty Ltd & Anor [1999] NSWADTAP 3
Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456
Re Nolan and Minister for Immigration and Ethnic Affairs (1986) 9 ALD 407
O’Shane v Burwood Local Court (NSW) & Ors [2007] NSWSC 1300QR v Commissioner of Police, New South Wales Police [2005] NSWADTAP 59
Shi v Migration Agents Registration Authority [2008] HCA 31
Re VC and Australian Federal Police (1985) 8 ALD 587
Walton v Momot, unreported, Court of Appeal, New South Wales, 17 April 1997 (BC9708241)
Z v University of A, Dr D & B (No 4) [2002] NSWADT 14REPRESENTATION: APPELLANT
RESPONDENT
A Johnson, solicitor
In personORDERS: 1. Leave to appeal is granted
2. Leave is granted for the appeal to extend to the merits and for the Appellants to adduce further evidence
3. The appeal is allowed
4. Orders 1 and 2 of the Appeal Panel made on 8 August 2008 are discharged and the following order substituted: ‘The Second Appellant is to be identified by the pseudonym “XXXX” alone in published reports of the decision in Dezfouli v State of New South Wales (Justice Health) and anor [2008] NSWADT 122.’
REASONS FOR DECISION
Introduction
1 This is an appeal against a decision of the Tribunal (Dezfouli v State of New South Wales (Justice Health) and anor (No 2) [2008] NSWADT 155) delivered on 28 May 2008.
2 The circumstances giving rise to that decision were usefully summarised in the following terms in the first two paragraphs of the Tribunal’s reasons: -
1 Justice Health provides health services to prisoners. An employee of Justice Health applied to the Tribunal for his name to be anonymised in a decision that the Tribunal handed down on 24 April 2008 ( Dezfouli v State of New South Wales (Justice Health) and anor [2008] NSWADT 122.) The background to that decision was that Mr Dezfouli is in custody at Long Bay Hospital having been found not guilty of various offences by reason of mental illness. He alleged that the employee, who was the second respondent in the proceedings, came into the shower room when he was naked to give him some papers. Following a short conversation, Mr Dezfouli said that the employee looked him up and down before leaving. Mr Dezfouli believes that the employee is homosexual and that he looked at him in a “gayish” manner.
2 Mr Dezfouli complained that this constituted sexual harassment in breach of the Anti-Discrimination Act 1977. The President of the Anti-Discrimination Board declined the complaint. Mr Dezfouli applied to the Tribunal for leave for the complaint to proceed. The Tribunal refused leave. Following the publication of that decision the employee applied to the Tribunal for an order that his name be deleted from the reasons for decision and that he be given a pseudonym. Mr Dezfouli opposed that application and a hearing on the issue took place on 9 May 2008. The employee’s submission was that the decision contains sensitive personal information and allegations about him. Mr Dezfouli said that the employee’s personal interest in having his name suppressed should not outweigh the public interest in open justice.
3 The Tribunal determined that the employee’s application for a suppression order should be refused. Both Justice Health and the employee appealed against this decision. They filed a Notice of Appeal and an Application for Leave to Appeal from an Interlocutory Decision on 24 June 2008 and an Amended Notice of Appeal on 8 July.
4 In its decision of 28 May 2008, the Tribunal stated at [14] that because Justice Health might wish to appeal against its decision on the employee’s behalf, it did not refer to the employee’s name in its reasons. The pseudonym ‘XXXX” was therefore used as the name for the Second Respondent in the list of parties appearing in published reports of the decision. The employee’s name was not, however, anonymised in published reports of the Tribunal’s decision in Dezfouli v State of New South Wales (Justice Health) and anor [2008] NSWADT 122 (hereafter ‘the Tribunal’s earlier decision’).
5 On 8 August 2008, the Appeal Panel, constituted by Deputy President Chesterman sitting alone, heard an application by the Appellants for an interim order that the name of the Second Appellant be anonymised in published reports of the Tribunal’s earlier decision. Before the hearing, efforts were made to secure the attendance of the Respondent to the appeal, Mr Dezfouli, by telephone, but due to circumstances beyond the Tribunal’s control, these efforts were unsuccessful. The Appeal Panel directed that the application should be heard ex parte and, on the basis of submissions made by Ms Johnson on behalf of both Appellants, made orders in the following terms: -
1. The Registry is directed to ensure as soon as possible that the name of the Second Appellant is deleted from published reports of the decision in Dezfouli v State of New South Wales (Justice Health) and anor [2008] NSWADT 122 and that the pseudonym ‘XXXX’ is substituted.
2. Order 1 is made on an interim basis only and is subject to reconsideration at the hearing of the appeal.
6 The substantive hearing of the application for leave to appeal and the appeal itself took place on 22 August 2008. Ms Johnson again appeared for the Appellants and Mr Dezfouli conducted his own case by telephone, pursuant to prior arrangements made with Long Bay Hospital. Both parties filed written evidence and submissions before the hearing. Copies of the evidence and submissions filed by the Appellants were received by Mr Dezfouli before he filed his own material.
The Tribunal’s decision refusing to make a suppression order
7 In its decision at [3 – 4], the Tribunal pointed out first that section 75(1) of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’) states the ‘general rule’ that Tribunal hearings are to be open to the public. It then indicated that section 75(2) authorises it, in its discretion, to make orders prohibiting disclosure of the name of, or other material identifying, a party or a witness so long as it is satisfied that such an order is ‘desirable…by reason of the confidential nature of any evidence or matter or for any other reason’. It added that in its opinion such an order may be made even after the decision with which the hearing was concerned has been handed down.
8 At [5], the Tribunal summarised the evidence on which the application for a suppression order was based. It is sufficient to record that this evidence went little further than to elaborate on the incident (which the Tribunal had outlined at [1]) about which Mr Dezfouli had complained to the Anti-Discrimination Board and to indicate that the employee, while agreeing that he had entered the shower room while Mr Dezfouli was standing naked in the shower, had denied ‘looking him up and down’.
9 At [6 – 9], the Tribunal discussed the legal rules governing the exercise of its discretion under section 75(2) of the ADT Act to make a suppression order. The Tribunal placed emphasis on authorities indicating that because the ‘primary purpose’ of section 75 was ‘to reinforce the long held and well-established principle of open justice’, a suppression order should only be made when a countervailing public interest justifying departure from this principle had been shown to exist. It is convenient to refer to further aspects of this discussion by the Tribunal in the course of our own examination of these rules.
10 At [11 – 12], under the heading ‘Conclusion’, the Tribunal held first that the evidence regarding the employee’s entry into the shower room and conversation with Mr Dezfouli (which the employee did not deny) was not ‘evidence or matter of a confidential nature’ relating to the employee, nor was there any other reason for that evidence to be suppressed. It held also that although the employee’s sexual preference was a confidential matter, the Tribunal’s earlier decision merely recorded Mr Dezfouli’s opinion of (a) the way in which the employee looked at him and (b) the employee’s sexual preference.
11 At [13], the Tribunal explained its decision as follows: -
13 In general, it is in the interests of open justice for the identity of a person about whom allegations are made to be recorded. Recording that information prevents speculation about that person’s identity and allows the person to respond. In this case the employee has had an opportunity to respond to the allegations and opinions expressed by Mr Dezfouli. The Tribunal made no findings in relation to those assertions and refused to give Mr Dezfouli leave to proceed with the complaint. The employee has not said that the expression of Mr Dezfouli’s opinions disadvantages him in any practical way or affects his reputation. He merely said that the decision contains sensitive personal information and allegations. Although I can understand the employee not wishing to have opinions or assertions about his sexuality publicly recorded, that wish is not sufficient in the circumstances of this case to displace the interests of open justice.
The Appellants’ applications for leave to extend the appeal to the merits and to introduce fresh evidence
12 The Appellants’ application for leave for the appeal to extend to the merits was made under subsection (2)(b) of section 113 of the ADT Act. It is useful here to reproduce relevant parts of this section together with the two sections following: -
113 Right to appeal against appealable decisions of the Tribunal
(1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel.
(2) An appeal under this Part:
(a) may be made on any question of law, and
(b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.
(2A) Despite subsections (1) and (2), an appeal does not lie to an Appeal Panel of the Tribunal against an interlocutory decision of the Tribunal except by leave of the Appeal Panel …
114 Appeals on questions of law
(1) If an appeal under this Part is restricted to questions of law, the Appeal Panel is to determine the appeal and may make such orders as it thinks appropriate in light of its decision.
(2) The orders that may be made by the Appeal Panel on any such appeal include, but are not limited to, any of the following:
(a) an order affirming or setting aside the decision of the Tribunal (as originally constituted),
(b) an order remitting the case to be heard and decided again by the Tribunal (as originally or similarly constituted), either with or without the hearing of further evidence, in accordance with the directions of the Appeal Panel,
(c) an order made in substitution for an order made by the Tribunal.
115 Appeals on the merits
(1) If an appeal under this Part extends to a review of the merits of an appealable decision, the Appeal Panel is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) The Appeal Panel may exercise all the functions that are conferred or imposed by or under any relevant enactment or this Act on the Tribunal at first instance to make the appealable decision concerned.
(3) In determining any such appeal, the Appeal Panel may decide:
(a) to affirm the decision, or
(b) to vary the decision, or
(c) to set aside the decision and make a decision in substitution for the decision it set aside.
13 The evidentiary material filed by the Appellants before the hearing of the appeal comprised a confidential statement (contained in a sealed envelope) and an ‘open statement’, both signed by the employee. Ms Johnson applied for leave to adduce both of these items of evidence.
14 She requested that the confidential statement be made available to the members of the Appeal Panel but not to Mr Dezfouli. Mr Dezfouli objected, arguing that he would be unfairly prejudiced. Having been given a general indication of its content by Ms Johnson, we ruled that it should not be admitted and returned the sealed envelope containing it to her.
15 In the open statement, the employee outlined a number of aspects of the following: (a) his work until May 2008 as an operations manager/senior nurse employed by Justice Health at Long Bay Hospital; (b) the statutory functions of Justice Health, notably with regard to the care of mentally ill offenders (such as Mr Dezfouli) who are involuntary ‘forensic patients’ at this Hospital; (c) the role of nurses in (amongst other things) forming impressions as to the condition of patients and recording comprehensive notes both of these impressions and of their interactions with patients; (d) what the employee believed to be the likely reactions – which might at times be violent reactions – when forensic patients became aware of adverse comments being made about them; (e) what he believed to be the reactions of Mr Dezfouli, having regard to the conclusions reached about Mr Dezfouli’s mental state, to such comments being made; and (f) a policy implemented by Justice Health prohibiting the disclosure of the surnames of staff at the Hospital to forensic patients, both in the course of interactions between staff and patients and in the medical records maintained at the Hospital.
16 The significant features of this statement so far as this appeal is concerned were the concerns expressed by the employee that disclosure of his name in the Tribunal’s judgment would be detrimental in three ways. First, it would (he believed) prejudice his own interests, by increasing the risk that forensic patients other than Mr Dezfouli, having ascertained his name, might employ violence or intimidation against him or members of his family outside Long Bay Hospital. They might do so after their release from the Hospital or might arrange for others to act in this way while they themselves were still in the Hospital. Secondly, disclosure of his name would lower the morale of other staff at Long Bay Hospital by causing them to think (a) that disclosure of their names might occur in similar circumstances in the future, thereby increasing the risk that they might suffer in the same way and (b) that Mr Dezfouli might make complaints against them to the Anti-Discrimination Board, in order to ascertain their surnames. Thirdly, disclosure would adversely affect Justice Health’s activities at the Hospital by encouraging existing staff to seek employment elsewhere and making recruitment of new staff more difficult.
17 In submitting that we should grant leave both for the appeal to extend to the merits and for the employee’s open statement to be adduced as evidence in the appeal, Ms Johnson relied on the Appeal Panel’s decision in Building Professionals Board v Hans (GD) [2008] NSWADTAP 13.
18 With regard to the first of these matters (extension of the appeal to the merits), she drew our attention to the following observations of the Appeal Panel in that case: -
31 [Counsel for the Appellant] referred first to passages in the separate judgment of Judicial Member Smith in an appellate decision within this Tribunal, Lloyd v TCN Channel Nine Pty Ltd & Anor [1999] NSWADTAP 3. Judicial Member Smith, agreeing with the other two members of the Appeal Panel that leave should be granted, suggested at [151] that this should be done where, for example, ‘an appellant could point to some blatant and important error of fact which called for remedy by an Appeal Panel in the interests of justice’, or where the appeal ‘could be shortly and conveniently disposed of by turning directly to the merits of the decision under appeal, without having to address the frustrating technical distinction between error of fact and error of law’.
19 Ms Johnson indicated that she would submit that the Tribunal in the present case had erred in its construction of section 75(2) of the ADT Act and that if we accepted this submission it would be ‘more expeditious’ for us to consider how the Tribunal’s discretion under this provision should be exercised than to remit the matter back to the Tribunal.
20 With regard to the second matter (adducing fresh evidence), she cited paragraphs [53] to [57] of the Appeal Panel’s judgment in Building Professionals Board v Hans. References to authorities cited by the Panel are deleted in the ensuing reproduction of these paragraphs: -
53 First, the provisions regarding internal appeals in Part 1 of Chapter 7 of the ADT Act sufficiently imply, without stating expressly, that an Appeal Panel has power to grant leave of this nature, whether or not it has given consideration to the question whether the decision under appeal contains errors of law…
54 Secondly, if the Appeal Panel is to exercise its discretion in favour of the party applying for leave, it must be ‘affirmatively satisfied’ that, having regard to the findings of the Tribunal at first instance, the further evidence, if tendered at the hearing conducted by the Tribunal was ‘likely to have produced a different result’… The applicant for leave does not have to show that if the evidence had been put before the Tribunal, an ‘opposite result would have been produced’ or it would have been ‘unreasonable to suppose the contrary’... But it is not enough merely to show that the further evidence is ‘useful’, or that its admission would have given rise to a ‘real chance’ that the Tribunal would have reached a different decision...
55 Thirdly, by analogy with the statutory requirement that the Full Court of the Family Court, in determining an appeal in proceedings relating to a child, must treat the best interests of the child as the paramount consideration, an Appeal Panel, in disciplinary proceedings such as these, must be ‘mindful’ of ‘the importance of the public interest served by the professional disciplinary system’…
56 Fourthly, the stress, inconvenience, uncertainty and additional financial cost to the parties that would be occasioned by a grant of leave must be taken into account...
57 Fifth and finally, unless the further evidence in respect of which leave is sought was deliberately withheld from the hearing conducted by the Tribunal, ‘the failure to call the evidence even it could have been discovered by the exercise of reasonable diligence may be of little significance’...
21 Ms Johnson formulated as follows the Appellants’ arguments relating to these five factors: -
1. The Tribunal in the present case did err in law, but even if it had not erred the appeal should be extended to the merits.
2. The evidence in the employee’s open statement as to the impact of disclosing his name publicly had not been put before the Tribunal. If it had been, it was likely that the Tribunal would have reached a different conclusion about the desirability of a suppression order.
3. The public interest in the protection of professional employees of Justice Health who worked with forensic patients was a strong reason for allowing the appeal to extend to the merits.
4. Since the appeal and the question whether it should extend to the merits would be determined at the same time, there would be little or no additional stress or inconvenience to Mr Dezfouli.
5. The evidence now sought to be adduced was overlooked due to a misunderstanding as to what was required when the application for a suppression order was argued before the Tribunal. It was not deliberately withheld.
22 Neither in his written nor his oral submissions did Mr Dezfouli address specifically the question whether leave should be granted for the appeal to extend to the merits or for the employee’s open statement to be adduced as fresh evidence.
23 We ruled during the hearing that by virtue of the arguments put forward by Ms Johnson the Appellants should be granted leave to extend the appeal to the merits and to adduce the employee’s open statement as fresh evidence. Broadly speaking, we agreed with her submissions regarding each of the five factors identified by the Appeal Panel in Building Professionals Board v Hans.
24 In addition to the material on which Ms Johnson relied, we took account (as did the Appeal Panel in Hans at [28]) of the Court of Appeal’s decision in Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456. The relevant ruling in this decision was that an Appeal Panel may grant leave under section 113(2)(b) for an appeal to extend to the merits without having first determined that an error of law exists or may exist in the decision under appeal.
The evidence admitted in the appeal
25 During the hearing, we formally admitted the employee’s open statement as evidence in the appeal, subject to one qualification. This was that three paragraphs in the statement (paras 32 – 34) were admitted only as evidence of the employee’s understanding and impressions of the matters canvassed in them (i.e., Mr Dezfouli’s mental condition and his likely reactions to adverse comments being made about him), not as evidence of the truth of the assertions made in those paragraphs.
26 We also admitted, without objection on behalf of the Appellants, a substantial bundle of documents tendered by Mr Dezfouli.
27 The employee gave oral evidence in chief and was cross-examined by Mr Dezfouli. Much of his oral evidence concerned various encounters within Long Bay Hospital between him and Mr Dezfouli, additional to the incident which prompted Mr Dezfouli’s complaint to the Anti-Discrimination Board.
28 The employee’s evidence regarding these encounters included allegations that Mr Dezfouli had made threats against him and against other members of the staff at Long Bay Hospital. Mr Dezfouli denied these allegations. For reasons that will become apparent, we do not think that this part of the evidence was relevant to the determination of this appeal. We make no finding regarding the truth of these allegations.
29 It also emerged from the employee’s oral evidence that, despite the policy of non-disclosure of surnames described in his statement, there were occasions when patients became aware of employee’s surnames. The employee said that these occasions did not conform with good practice. He also conceded that Mr Dezfouli must have ascertained his own surname other than through the present proceedings.
30 The documents tendered by Mr Dezfouli showed that the principal offence of which he had been found not guilty by reason of mental illness had been either manslaughter or murder (inexplicably, these two offences were separately indicated in different official documents) occurring because he had set fire to a building.
31 These documents included two reports relating to Mr Dezfouli which contained statements to the effect that he was ‘polite’ and ‘relaxed’ and not prone to violence. One of these reports, apparently prepared during 2007, was by a medical registrar in forensic psychiatry employed within Long Bay Hospital. The other, dated 25 May 2008, was by a mental health nurse. In the former report, the name of the person preparing it was stated.
32 These documents showed in addition that in recent years Mr Dezfouli had made a number of complaints to various authorities about allegedly violent or otherwise improper treatment of forensic patients at Long Bay Hospital. In a report on him prepared by a consultant psychiatrist during July 2006, the opinion was expressed that he obtained ‘considerable satisfaction’ from ‘using his detailed knowledge of the legal and complaints processes to not just further his cause but to plague those who he believes have impeded his quest, or harmed him along the way’. Mr Dezfouli’s pattern of behaviour in this regard was described as ‘querulous’.
33 There is also evidence before us that in recent years Mr Dezfouli has sought access to medical records relating to him in which the names of Justice Health employees responsible for preparing the records are visible. This evidence is constituted by (a) two Tribunal decisions, delivered in 2006 and 2008 respectively and referred to in the written submissions handed up by Ms Johnson, and (b) certain statements made in Mr Dezfouli’s oral submissions.
The Appellants’ submissions
34 In her written and oral submissions, Ms Johnson argued first that leave should be granted under section 113(2A) of the ADT Act (see [12] above) for the Appellants to pursue this appeal against an interlocutory decision. Her reasons were that (a) the Tribunal applied an incorrect test when dealing with the application for a suppression order and (b) both the Appellants had a ‘substantive interest’ in the outcome of the Tribunal’s decision. The nature of this ‘substantive interest’ was made clear from the fresh evidence being adduced – i.e., the employee’s ‘open statement’. She pointed out that the relevance, in this context, of an evident error in the decision appealed against and of a ‘substantive interest’ in the outcome had been asserted by the Tribunal in Commissioner of Police, New South Wales Police v LZ [2008] NSWADTAP 26 at [5].
35 In maintaining that the Tribunal had erred in law, Ms Johnson claimed that in its judgment at [7], the Tribunal treated as authoritative the approach to interpreting section 75(2) of the ADT Act that had been adopted by the Appeal Panel in QR v Commissioner of Police, New South Wales Police [2005] NSWADTAP 59. She argued that this decision was clearly distinguishable from the present case. It related to an order that a hearing within Tribunal proceedings should take place in closed session and without prior notice of its occurrence being given to one of the parties. In contrast to the present case, where only the suppression of reporting of the name of a party was in issue, an important question of procedural fairness arose.
36 In Ms Johnson’s submission, the Tribunal should have simply considered whether, as provided in section 75(2)(b), an order suppressing publication of the employee’s name was ‘desirable’ or (to employ a synonym given in the Macquarie Dictionary) ‘advisable’. But it did not expressly adopt this approach.
37 Alternatively, she said, the Tribunal should have adopted a criterion stated by the Court of Appeal in Walton v Momot, unreported, 17 April 1997 (BC9708241) when interpreting a provision (section 46(3) of the Chiropractors and Osteopaths Act 1991) authorising a disciplinary tribunal to suppress the publication of a party’s name when it considered this to be ‘appropriate in the particular circumstances of the case’. This criterion was that the circumstances must be ‘special, exceptional, or out of the ordinary’. But although the Tribunal referred both to this case and to the criterion formulated by the Court of Appeal (see the judgment at [9]), it did not apply the criterion when arriving at its decision.
38 Ms Johnson argued further that, on taking into account the three grounds of serious concern about disclosure of this name that were outlined by the employee in his open statement (see [16] above), the Appeal Panel, having admitted this statement as fresh evidence, should reach a different conclusion to that reached by the Tribunal. It should conclude that by virtue of these three grounds, considered in conjunction, it was clearly ‘desirable’ that an order suppressing publication of the employee’s name should be made. These grounds related respectively to the interests of the employee, those of his fellow-employees and an important public interest; viz, the successful discharge of Justice Health’s responsibilities at Long Bay Hospital.
39 Ms Johnson also submitted that it was clear from the evidence that Mr Dezfouli was prone at times to violent behaviour and also was skilful and assiduous at pursuing complaints against authorities and individuals against whom he had a grievance. She added that publication of the employee’s name would encourage vexatious complaints against staff by patients other than Mr Dezfouli, because they would know that the name of the staff member concerned would be made public.
40 A further submission by her was based on the fact that the President of the Anti-Discrimination Board had declined to entertain Mr Dezfouli’s complaint against the employee and the Tribunal, in its earlier decision, had refused to grant leave for the complaint to proceed. She argued that in such circumstances, where both the President and the Tribunal had found that Mr Dezfouli’s ‘scurrilous’ allegations against the employee had ‘no substance’, it was undesirable to identify permanently, within the reports of this judgment published on the internet, the name of the person about whom the allegations were made. It was relevant also that the earlier decision followed a hearing in open court and could be published and understood without the employee being identified by name.
41 In response to a question by a member of the Appeal Panel, Ms Johnson pointed out that although the employee’s name had appeared in reports of the Tribunal’s earlier decision, it was in the public domain for a period of only a few weeks. This period came to an end when the interim order made on 8 August 2008 (see [5] above) was put into effect.
42 Some further arguments and authorities relied on by Ms Johnson are referred to below.
The Respondent’s submissions
43 The principal argument advanced by Mr Dezfouli was that publication of the names of employees of Justice Health in reports of legal proceedings such as these was essential in order to ensure that they were accountable and responsible for their actions in accordance with the law regulating the discharge of their duties. Referring to the complaints that he had made about their allegedly improper conduct towards forensic patients at Long Bay Hospital, he contended that if the employee’s name in the present proceedings was made public, they would all know what would happen to them if they behaved corruptly or improperly. This, he said would have a positive impact on their behaviour.
44 Mr Dezfouli submitted that these considerations drew support from the broad principle of open justice. He cited a leading authority on this principle, John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465. The Police Tribunal had made an order prohibiting the publication of the name of a person who was neither a party nor a witness in the proceedings, even though the name had been uttered in open court. The Court of Appeal held that the order was void, as the Tribunal had no jurisdiction, express or implied, to make it. McHugh JA (with whom Glass JA agreed) stated as follows at 476-477:-
The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it.
45 Mr Dezfouli also argued (a) that the reports on him contained in the bundle of documents that he had tendered showed him to a peaceful man, not prone to violence, and (b) that it therefore could not be claimed that he used complaints mechanisms in order to obtain revenge for what he believed to be unfair treatment of him, or that he was a vexatious litigant.
Discussion of the applicable law
46 In order to canvass fully the issues raised in this appeal, we consider it important to refer to a wider range of authorities than were cited in the judgment under appeal and the parties’ submissions. We note that while numerous decisions on suppression orders have been made by the Tribunal at first instance, the nature and scope of the statutory power to make such orders have been discussed at appellate level on relatively few occasions.
47 As already stated, this power is conferred by section 75(2) of the ADT Act. For present purposes, the relevant provisions of section 75 are as follows: -
75 Proceedings on hearing to be conducted in public
(1) If proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the public.
(2) However, if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:
(a) an order that the hearing be conducted wholly or partly in private,
(b) an order prohibiting or restricting:
(i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Tribunal or a witness summoned by, or appearing before, the Tribunal), or
(ii) the doing of any other thing that identifies, or may lead to the identification of, any such person,
(b1) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Tribunal,
(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,
(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.
(2A) The Tribunal cannot make an order under subsection (2) (b) in respect of any proceedings to which section 126 applies.
(2B) The Tribunal may from time to time vary or revoke an order made under subsection (2).
48 A comparable provision, section 35, of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) was discussed by the Tribunal in its judgment in this case at [8] and is dealt with in some of the decisions to which we will refer. So far as relevant, section 35 states: -
Hearings to be in public except in special circumstances
…
(1AA)…
Public hearing
(1) Subject to this section, the hearing of a proceeding before the Tribunal shall be in public….
Private hearing etc.
(2) Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:
(a) direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; and
(aa) give directions prohibiting or restricting the publication of the names and addresses of witnesses appearing before the Tribunal; and
(b) give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; and
(c) give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding.
(3) In considering:
(a) whether the hearing of a proceeding should be held in private; or
(b) whether publication, or disclosure to some or all of the parties, of evidence given before the Tribunal, or of a matter contained in a document lodged with the Tribunal or received in evidence by the Tribunal, should be prohibited
or restricted;
the Tribunal shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted.
49 In Australian Securities and Investments Commission v PTLZ [2008] FCAFC 164, a decision relating to section 35 of the AAT Act, North and Downes JJ (at [34]) placed strong emphasis on the necessity of treating the ‘actual words’ of the relevant legislation as ‘the primary point of reference’. They pointed out that the Administrative Appeals Tribunal, like this Tribunal, had no common law or inherent jurisdiction because it was not a court. They quoted the following passage from the recent judgment of Hayne and Heydon JJ in Shi v Migration Agents Registration Authority [2008] HCA 31 at [92]:-
As this court has so often emphasised…in recent years, questions presented by the application of legislation can be answered only by first giving close attention to the relevant provisions. Reference to decided cases or other secondary material must not be permitted to distract attention from the language of the applicable statute or statutes. Expressions used in decided cases to explain the operation of commonly encountered statutory provisions and their application to the facts and circumstances of a particular case may serve only to mask the nature of the task that is presented when those provisions must be applied in another case. That masking effect occurs because attention is focused upon the expression used in the decided cases, not upon the relevant statutory provisions.
50 Within the opening words of section 75(2) of the ADT Act (and indeed of section 35(2) of the AAT Act), three elements of prime importance are the word ‘desirable’, the phrase ‘for any other reason’ and the word ‘may’. These indicate that the purpose (or purposes) to be served by a suppression order may be ‘any … reason’ (or reasons) whatever, that the power arises when the Tribunal is satisfied that the order is ‘desirable’ and that the actual making of the order is not mandatory but within the Tribunal’s discretion.
51 There are evident and important differences between a power conferred in these terms and the common law power to prohibit or restrict the reporting of matters occurring in open court described by McHugh JA in John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 4. As set out above at [44], his Honour stated that by virtue of the principle of open justice, an order prohibiting fair and accurate reports of what occurs in the courtroom is only valid if it is ‘really necessary to secure the proper administration of justice in proceedings before it’. In this statement of principle, both the purposes to be served by a suppression order and the criterion for determining whether one may be made are formulated in distinctly narrower terms than in section 75(2) of the ADT Act.
52 In a number of leading authorities dealing with suppression orders at common law, the order sought was (as in the present case) an order preventing the public identification of a person – most commonly a witness – involved in proceedings being heard in open court. Frequently (though not in the present case) the order was sought at or near the commencement of the hearing and, if the application was granted, the order made was that throughout the proceedings the person concerned should be identified by a pseudonym.
53 In such cases, the courts have applied a criterion of ‘necessity’, such as that stated by McHugh JA. They have, however, widened the permitted range of purposes so as to include securing the proper administration of justice generally – i.e., in future proceedings as well as in the proceedings currently being heard. In O’Shane v Burwood Local Court (NSW) & Ors [2007] NSWSC 1300, for instance, McLellan CJ at CL said at [46]: -
There are two questions which require consideration. They are essentially related. The first question is whether the granting of a pseudonym order is necessary to secure the proper administration of justice. In the cases where an implied power to make pseudonym orders has been recognised — particularly those relating to blackmail, informers and extortion — the court has been satisfied that if an order were not made the consequence would be “unacceptable”... The consequences which have justified an order are the safety, livelihood or reputation of a victim or witness as a result of giving evidence in the proceedings. In the case of informers, revelation of their identities has been accepted as potentially undermining other investigations (including covert operations), posing a threat to their safety with the prospective prejudice to the prosecution of crime. In blackmail cases, if the identity of the “victim” is not protected they may be vulnerable to other “blackmailers” or reluctant to report the crime. By protecting the “victim” in one case the court encourages other incidents of blackmail in other cases to be reported.
54 At [48], his Honour said that ‘the courts will not add to the list of categories’.
55 In her submissions, Ms Johnson argued that because this case, along with a number of other cases dealing with common law powers to make pseudonym orders, expressly applied different principles to those embodied in section 75(2) of the ADT Act, they should not be treated as directly applicable to this appeal.
56 We agree with this argument. By virtue of the same reasoning, the authority cited by Mr Dezfouli, John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, is not directly applicable.
57 It does not follow, however, that the broad principle of open justice that decisions such as John Fairfax v Police Tribunal and O’Shane v Burwood Local Court strongly affirm has no relevance to our decision. Two aspects of the relevant provisions of the ADT Act (which for reasons given above at [49] must be our ‘primary point of reference’) indicate this clearly.
58 The first of these is that subsection (2) of section 75 begins with the word ‘however’ and is expressed as an exception to a statutory formulation, in subsection (1), of the principle of open justice. This principle may not receive explicit emphasis in the way that it does in the concluding paragraph of section 35(3) of the ADT Act. (In Australian Securities and Investments Commission v PTLZ [2008] FCAFC 164 at [40], North and Downes JJ said that that paragraph ‘imposes an overriding obligation on the Tribunal to “take as the basis of its consideration the principle” that hearings should be in public’.) But it is beyond doubt that section 75(1) creates a presumption in favour of hearings being both open to the public and freely reportable and that circumstances justifying departure from this presumption must be present if an order is to be made under section 75(2).
59 Secondly, section 126 of the ADT Act (to which section 75(2A) refers) prohibits the publication of material disclosing the names or other identifying features of a person involved in certain specified classes of Tribunal proceedings, unless the Tribunal consents. This impliedly reinforces the principle that, in proceedings outside these specified classes, the publication of such material is prima facie permissible.
60 The interrelation between section 126 and section 75 was discussed by the Appeal Panel in Lloyd v TCN Channel Nine Pty Ltd & Anor [1999] NSWADTAP 3. At the time of this decision, section 126 applied to all Tribunal proceedings. A useful summary of the divergent approaches adopted in the two provisions appears in the following passage in the reasons of Judicial Member M B Smith at [135 – 136]: -
135 The criminal offence provided by section 126 clearly has a rationale which contrasts with the rationale for the common law principles. It accepts that publicity of the identities of parties, witnesses and others involved in Tribunal proceedings may cause harm to those persons, and is designed to protect them from that harm. Its protective effect arises regardless of whether this assists or detracts from the interests of the administration of justice by the Tribunal, either in the particular case or generally. However, it confers on the Tribunal a power to lift the protection.
136 Section 75 has a different starting point. It reflects the usual position which prevails in courts and tribunals whose hearings are open to the public. Although we do not need to decide in this case, the authorities cited above would seem to require the Tribunal’s suppression powers to be exercised according to the “ordinary principles”. If the direction in section 75(1) that “the hearing is to be open to the public” stood in the ADT Act without the presence of section 126(1), there would be little doubt that it would operate so as to permit media reporting of the hearing in the normal manner.
61 Quite apart from these two considerations, it is unthinkable that the word ‘desirable’ in section 75(2) should be interpreted without regard to the basic common law precept of open justice. What is ‘desirable’ under a statutory provision must be determined in accordance with consistent standards and values, not the particular preferences of the court or tribunal applying the provision. The values that have informed judicial decisions about the issues raised in section 75 have consistently attributed considerable importance to the desirability of hearings being open to the public and fully reportable unless good reasons are advanced for restricting public access and/or full reporting.
62 We accordingly endorse the emphasis given by the Tribunal to the principle of open justice in its decision at [6]. In this paragraph, the Tribunal reproduced the following ‘rationale’ for the principle stated by Hedigan J in Herald & Weekly Times Ltd v Medical Practitioners Board of Victoria, unreported, Supreme Court of Victoria, 10 June 1998 (BC9802329) at 17): -
The reason for the favouring of open hearings is intimately connected with the conduct of public affairs in a democracy, namely, that it is, as a general principle, in the public interest that disputes between State and citizen, and citizen and citizen, not be tried behind closed doors but so that the work of those appointed to decide, the evidence given by witnesses, and the decisions can be scrutinized by all who care to visit. Since not everyone can visit, citizens in a democracy depend to a substantial extent upon accurate and published reporting of what takes place.
63 In the next paragraph of its judgment, the Tribunal stated: -
7 The Appeal Panel of this Tribunal has decided that the discretion to make a suppression order should be “strictly and narrowly construed, and operate only if and when there is a public interest supporting their use which outweighs the public interest in the implementation of the fundamental principles of open justice and procedural fairness”: QR v Commissioner of Police, NSW Police [2005] NSWADTAP 59 at [20].
64 As indicated above at [35], Ms Johnson submitted that at this point the Tribunal erred by apparently treating as binding upon it the Appeal Panel’s approach in QR. She based this criticism on the fact in QR, in contrast to the present case, an important question of procedural fairness was involved.
65 In our opinion, the Tribunal, while it did not consider itself formally bound to apply the Appeal Panel’s decision in QR, does appear to have taken account of the Panel’s insistence on section 75(2) being given a narrow scope without adverting to the important factors differentiating that case from the present case. To this extent, Ms Johnson’s criticism of the Tribunal’s reasons is well founded.
66 The following aspects of the judgment in QR provide support for this view. First, at the commencement of the paragraph in that judgment (paragraph [20]) from which the Tribunal quoted, the Appeal Panel made it clear that its observations regarding the application of section 75(2) were directed specifically to what it described as ‘the course adopted by the Tribunal’ in the case before it. This course of action took the form of ordering that a hearing should take place in closed session and without prior notice of its occurrence being given to one of the parties. Secondly, the Appeal Panel (at [17]) quoted provisions in sections 73(2) and 73(4)(c) respectively requiring the Tribunal to observe ‘the rules of natural justice’ and to ‘take such measures as are reasonably practicable…to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings. Thirdly, it commented (at [18]) that the complaints of the appellant in the proceedings before it were ‘less concerned with the exclusion of the public from part of the hearings than with the exclusion of the appellant and his legal representatives and the Tribunal’s reliance on material and evidence of which the appellant is unaware’. Fourth and finally, the case to which the Appeal Panel principally referred in reaching its conclusion – Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247, a decision relating to section 35(2) of the AAT Act – also involved exclusion of a party from a hearing.
67 It is not surprising in such a factual context that the Appeal Panel in QR put great emphasis on confining the power conferred by section 75(2) on the Tribunal within narrow and strictly defined limits and, indeed, made no mention of those aspects of the wording of the provision (discussed above at [50 – 56]) that make this power broader than suppression powers arising at common law.
68 Our conclusion that the Tribunal may have been unduly influenced by the passage that it quoted (at [7]) from the judgment in QR is based also on the fact that it made no further observations directly bearing on the interpretation of section 75(2).
69 The Tribunal’s discussion of the applicable law came to an end in the ensuing three paragraphs. In those paragraphs ([8 – 10]), the Tribunal described other provisions empowering the making of suppression orders and summarised various decisions applying these provisions. These provisions were section 35 of the AAT Act (reproduced above at [41]), section 46(3) of the Chiropractors and Osteopaths Act 1991 (together with the Court of Appeal’s decision in Walton v Momot, unreported, 17 April 1997 (BC9708241), outlined above at [37]) and a provision (section 61) of the Federal Magistrates Act 1999 (Cth) which, like common law principles on suppression orders, limits the making of such orders to cases where they are ‘necessary’ to prevent prejudice to the administration of justice. Significantly for present purposes, the Tribunal gave no indication in these paragraphs as to whether, and if so to what extent, it viewed the provisions cited and the authorities applying them as providing guidance on the approach to be taken to section 75(2) of the ADT Act.
70 For these reasons, we consider it likely that, as Ms Johnson submitted, the Tribunal’s approach to interpreting and applying section 75(2) was unduly influenced by the passage that it quoted from the Appeal Panel’s decision in QR and that, to this extent, it erred in law. For reasons explained below, however, our decision in this appeal does not require a formal ruling on this question.
71 In seeking further guidance as to the principles to be applied in this case, we have been assisted by four decisions that have not been mentioned so far. Two of them were made under section 75(2) of the ADT Act and two under section 35(2) of the AAT Act. We will briefly outline the relevant aspects of each of them.
72 In Z v University of A, Dr D & B (No 4) [2002] NSWADT 14, which involved proceedings under the Anti-Discrimination Act 1977, the Tribunal continued a pre-existing order under section 75(2)(b) of the ADT Act prohibiting (subject to limited exceptions) the disclosure of material identifying any of the three Respondents or any of six other specified persons, and also made an order under the same provision prohibiting disclosure of material identifying the Applicant.
73 The Tribunal observed at [16] that in a previous decision dealing with a suppression power conferred by the Anti-Discrimination Act itself, it had been held that the prospect of embarrassment and stress affecting the complainant was ‘an insufficient basis for departing from the general rule that the Tribunal’s proceedings should be conducted openly’. A similar proposition is often to be found in judgments dealing with suppression orders at common law (see e.g. John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 at 143 per Kirby P) and under statutory provisions (see e.g. Lawrance v Commonwealth of Australia & Ors [2006] FMCA 1792 at [56]).
74 The Tribunal decided at [23 – 27], however, that the orders relating to the Respondents and the six other specified persons should be continued for the following reasons: (a) the public airing of serious allegations of impropriety made against them by the Applicant, going beyond the Tribunal’s jurisdiction, was likely to damage their reputations severely, causing them greater harm than any harm that might be done to the Applicant; (b) the Applicant had indicated a desire to cause hurt, distress and embarrassment to many, if not all, the Respondents; (c) the Applicant’s allegations were not supported by any objective evidence; and (d) since none of the Respondents, apart from the Respondent University, had played any role in the investigation conducted by the Anti-Discrimination Board, there had been no opportunity, even at an informal level, to test the strength of the many serious allegations made against them. The Tribunal’s reasons for making also an order prohibiting disclosure of the Applicant’s identity were (a) that serious counter-allegations had been made against him and (b) that the Respondents did not oppose such an order (see the decision at [30 – 31]).
75 In Fomiatti v University of Western Sydney [2005] NSWADT 245, the Tribunal observed at [5] that while the discretion conferred by section 75(2) is broad, it is not an unfettered discretion. The power conferred by the provision was, it said, only exercisable when the Tribunal was satisfied that there was a reason for exercising it. At [6], the Tribunal considered, but did not rule upon, the proposition that, in line with the approach taken by the Court of Appeal in Walton v Momot, unreported, 17 April 1997 (BC9708241) (see [37] above), an order should not be made unless the circumstances were ‘special’ or ‘exceptional’. At [14], it concluded that an order was not warranted solely by the possibility that during the proceedings the applicant might publish articles in a student newspaper about them that were erroneous and/or critical of the respondent.
76 Re VC and Australian Federal Police (1985) 8 ALD 587, a case mentioned in the Tribunal’s judgment in these proceedings (at [8]) and in Ms Johnson’s submissions, concerned an application to the Administrative Appeals Tribunal seeking review of a decision refusing access to documents under Commonwealth freedom of information legislation. With no opposition from the respondent (the Australian Federal Police) the applicant obtained an order under section 35(2) of the AAT Act prohibiting disclosure of his name. He subsequently withdrew his application to the Tribunal. The respondent then applied for the order to be varied so as to permit publication of the applicant’s name.
77 The Tribunal held at [11 – 14] that even though it was the respondent who sought variation of the suppression order, the onus lay on the applicant to justify its continuance. It found at [17] that if publicity were given to the fact that the applicant, a prominent businessman, had made the application for review, there would be ‘a substantial risk that his reputation and his business interests would be damaged’. It pointed out at [18] that subsection (3) of section 35 disclosed a ‘clear legislative intention that directions should not be given under subsection (2), unless the harm that is likely to result if no such direction is given outweighs the public interest in the public having full knowledge of the proceedings’. The Tribunal then said: -
However, as I have already observed, the public interest in having information about the identity of an applicant in proceedings before the Administrative Appeals Tribunal is of a considerably lower order than in the Tribunal's hearings being conducted in public and the evidence given being available for public scrutiny. There may well be a public interest in having information as to what proceedings are commenced in the Tribunal and subsequently withdrawn and by whom they were commenced; if that is so, it is still, I consider, an interest of a considerably lower order than the interest in hearings being in public and in the evidence being available for public scrutiny.
78 The conclusion of the Tribunal was that, subject to minor variations, the suppression order made earlier should be continued.
79 Finally, in Re Nolan and Minister for Immigration and Ethnic Affairs (1986) 9 ALD 407, an applicant to the Administrative Appeals Tribunal sought review of an order by the Minister for Immigration and Ethnic Affairs that he be deported following the conclusion of a prison sentence that he had served in Victoria. Pursuant to a statutory obligation, the Minister lodged with the Tribunal a statement of his reasons for making this order together with copies of all documents in his possession that were relevant to the matter. He also applied for an order under section 35(2) prohibiting publication of certain of the documents to anyone other than the members constituting the Tribunal and Tribunal staff. The documents in question, which all related to the applicant, had been prepared within the Victorian Department of Corrections. In its judgment at [10], the Tribunal referred to a description of them as ‘as a Corrective Services social history intake form, file notes, extracts from prison classification file and probation and parole report’.
80 The Tribunal held that an order should be made prohibiting disclosure of some of this documentary material to anyone other than the members constituting the Tribunal and Tribunal staff. At the same time, it suggested (at [25]) that the applicant should be given the opportunity at the hearing of his application to rebut allegations in the concealed material that were adverse to him. The Tribunal explained its reasons for making the suppression order in the following passage: -
19 In the present case, as in Pochi [ Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 – see [66] above], if an order is made under section 35(2), denying the applicant access to the information contained in the documents concerned, he will not have a full opportunity to deal with information some of which may be adverse to his interests. With respect, I consider that it is appropriate that, in deciding whether or not to make that order, I should apply the principles stated by Brennan J in that case.
20 I am satisfied that there are conflicting interests, both public and private, and that the interests cannot be reconciled. There is the applicant's private interest in having a full opportunity to deal with all evidence which may be adverse to his interests. There is also the public interest in his being able to do so and in a general disclosure of all matters relevant to the decision-making process of the Tribunal. On the other hand, there is the public interest in the Minister and the Tribunal having available to them, not only in these proceedings but in future cases in which the question of exercise of powers under section 12 of the Migration Act has to be considered, information of the sort contained in the documents in respect of which the order is sought. It is clear that, if the Tribunal does not make the order sought, it is likely that documents relating to prisoners, or details of their contents, will not be made available to the Minister and will, therefore, not be available to him or the Tribunal.
21 There is also the public interest in the effective administration of the prison system in the State of Victoria. Regard must be had to the fact that the incarceration of persons in prisons inevitably gives rise to tensions and to problems of interpersonal relationships between prisoners and one another and between prisoners and prison officers and other persons involved in the administration of the prison system. It cannot be overlooked that at any one time there will inevitably be a number of persons serving sentences of imprisonment who are of a violent disposition. There is undoubtedly a substantial risk that the disclosure to some prisoners of documents recording information or opinions about them expose to danger of physical violence the persons who have supplied that information or expressed those opinions. I accept, therefore, the assertions made by Mr Ryan that some documents containing such information and opinions cannot be published or disclosed to the persons concerned without risk of adverse effects on the administration of the prison system, and that the existence and degree of such risk from publication or disclosure of any particular document or of the information or opinions expressed in it can be made effectively only by officers of the Office of Corrections with experience and knowledge of all the relevant facts.
81 It is difficult if not impossible to set out in short form all the matters that, according to the case law just discussed, should be taken into account in deciding whether an order should be made under section 75(2). It must suffice here simply to draw attention to the following points of relevance to our decision in this case: (a) the presumption in favour of open justice; (b) the need for an applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of ‘desirability’; (d) the important differences between the types of suppression order that may be made – between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served (‘any other reason’); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) the possibility that, although generally speaking the prospect of damage to reputation or ‘embarrassment’ affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order.
82 In view of Ms Johnson’s submission regarding the criterion stated by the Court of Appeal in Walton v Momot, unreported, 17 April 1997 (BC9708241) (see [37] above), it is appropriate for us to express an opinion on its applicability. In the light of our examination of the authorities, we would not dispute that, for an order to be made, the circumstances should be ‘special’ or ‘out of the ordinary’ (though a requirement that they be ‘exceptional’ may involve setting the bar too high). But it is important to recognise that this is at most a necessary, not a sufficient, condition.
Our conclusions
83 Having determined (see [12 – 24] above) that leave should be granted for the appeal to extend to the merits and for the Appellants to adduce fresh evidence, our task under section 115(1) of the ADT Act is ‘to decide what the correct and preferable decision is’ having regard to the material now before us, including the fresh evidence admitted on the tender both of the Applicants and of Mr Dezfouli.
84 The most important aspect of the employee’s open statement is, in our opinion, his account, summarised above at [16], of the range of potential harms that will arise if his identity as a party to these proceedings does not remain concealed. He identified three categories of detriment: (a) to himself, (b) to his fellow-employees at Long Bay Hospital and (c) to Justice Health, in its capacity as an authority responsible for the care of mentally ill offenders residing in the Hospital
85 In granting leave for this statement to be adduced as fresh evidence, we accepted Ms Johnson’s submission (see [21] above) that if it had been tendered to the Tribunal, it was ‘likely’ that the Tribunal would have reached a different conclusion about the desirability of a suppression order. Notably in drawing attention to the potential detriment to fellow-employees and to Justice Health if the employee’s name continued to be included in reports of the Tribunal’s earlier decision, the statement enlarged significantly the grounds on which a suppression order might be held to be ‘desirable’ under section 75(2). In the absence of evidence on these matters, the only basis on which the Tribunal was asked to make an order was that of detriment to the employee himself, taking the form of disclosure of ‘sensitive personal information and allegations’ (see the outline of the section of the Tribunal’s judgment headed ‘Conclusion’, at [10 – 11] above).
86 Having further considered this statement, together with the employee’s oral evidence, the written evidence tendered by Mr Dezfouli and the parties’ submissions, the ‘correct and preferable decision’, in our opinion, is that by virtue principally of the matters raised in the employee’s statement, the Appellants’ case for continuance of the current interim suppression order has been made out. Notwithstanding the presumption of open justice embodied in section 75(1) of the ADT Act, this outcome is ‘desirable’ within the meaning of section 75(2), in order to avoid the threefold detriment that would otherwise arise. But we would emphasise that this decision depends very much on the particular circumstances of this case.
87 By way of explanation of these conclusions, we make the following seven observations.
88 First, taking account of considerations broadly similar to those dealt with in Re Nolan and Minister for Immigration and Ethnic Affairs (1986) 9 ALD 407, we accept the employee’s claim that both the private interests of employees of Justice Health at Long Bay Hospital (including his own interests) and the public interest in the effective discharge of Justice Health’s responsibilities would be put at risk if no order were made. The policy of non-disclosure of staff surnames maintained (albeit without universal compliance) at the Hospital serves these interests and should not be jeopardised without compelling reasons.
89 Secondly, we treat as applicable to the employee in the present case the observation of the Administrative Appeals Tribunal in Re VC and Australian Federal Police (1985) 8 ALD 587 at [18] that ‘the public interest in having information about the identity of an applicant…is of a considerably lower order than in the Tribunal's hearings being conducted in public and the evidence given being available for public scrutiny’.
90 Thirdly, however, an important rider to what we have just said is as follows. A significant reason why the public interest in knowing the employee’s identity in this case is of a ‘lower order’ than its interest in the hearings and the evidence being open to public scrutiny is that on account of the termination of the proceedings instituted by Mr Dezfouli, the truth of the relatively non-specific allegation that he made against the employee will not be tested (at least not in these proceedings) by standard forensic processes, nor will it be the subject of a finding one way or another by the Tribunal.
91 Fourthly, in making this last observation, we endorse in general terms the policy underlying a submission by Mr Dezfouli that is summarised above at [43]. This submission was to the effect that publication of the names of employees of Justice Health in reports of legal proceedings such as these was essential in order to ensure that they were held accountable and responsible for their actions in accordance with the law regulating the discharge of their duties. Mr Dezfouli sought to reinforce this submission by referring to the complaints that he had made in recent years to official bodies about the treatment of forensic patients at Long Bay Hospital.
92 In our opinion, if proceedings in the Tribunal involved allegations of evident misconduct against one or more employees of Justice Health at Long Bay Hospital and it was likely that the truth or falsity of these allegations would be determined by the Tribunal in the course of those proceedings, the existence of practices within Justice Health preventing (or seeking to prevent) the disclosure of employees’ surnames to patients would be unlikely – we put it no higher than this – to constitute grounds for an order suppressing publication of those names. On account of this important consideration, we wish to make it clear that our decision in this appeal is based on the particular circumstances of this case, not on any sort of general principle that the employees of organisations such as Justice Health (or indeed of a government authority directly involved in the administration of a prison, such as the Department of Corrections in the Nolan case) have a right to anonymity in Tribunal proceedings simply because they are entitled or required to maintain anonymity in their working environment.
93 Fifthly, because the proceedings instituted by Mr Dezfouli were terminated at the outset, the employee himself has never had the opportunity to seek to clear his name by seeking a finding by the Tribunal in his favour regarding the allegation that Mr Dezfouli made against him. That allegation remains untested and, if no suppression order were to continue in force, it would become and remain linked to a publicly identified person. This factor played a role in the Tribunal’s decision in Z v University of A, Dr D & B (No 4) [2002] NSWADT 14 to continue the suppression order already made with regard to the names of the respondents (see [74] above).
94 Sixthly, we agree with Ms Johnson, after giving the matter careful consideration, that the fact that the employee’s name was in the public domain – i.e., in the reports of the Tribunal’s earlier decision – for the period of some weeks between the delivery of that decision and the interim order made on 8 August 2008 does not render continuance of that order a futile exercise. It might have been otherwise if this had been a case attracting massive publicity.
95 Our seventh and final observation is that we have arrived at our conclusions in this case without making any findings regarding the truth of (a) the employee’s allegations of threats and violence on the part of Mr Dezfouli or (b) Mr Dezfouli’s allegations of improper conduct by employees of Justice Health. The evidence proffered on these matters fell well short of what was needed to make findings. Furthermore, these matters were not directly relevant to our decision.
96 Our orders disposing of this appeal are as follows: -
1. Leave to appeal is granted.
2. Leave is granted for the appeal to extend to the merits and for the Appellants to adduce further evidence.
3. The appeal is allowed.
4. Orders 1 and 2 of the Appeal Panel made on 8 August 2008 are discharged and the following order substituted: ‘The Second Appellant is to be identified by the pseudonym “XXXX” alone in published reports of the decision in Dezfouli v State of New South Wales (Justice Health) and anor [2008] NSWADT 122.’
97 In addition, we make an order under section 75(2) of the ADT Act preserving the anonymity of the Second Appellant in these appeal proceedings. Such an order may be made by the Tribunal on its own motion. The grounds of this order are in substance the same as underlie our decision to allow this appeal.
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