Whitehall and Civil Aviation Safety Authority

[2019] AATA 704

Whitehall and Civil Aviation Safety Authority [2019] AATA 704 (16 April 2019)

Division:                GENERAL DIVISION

File Number(s):    2018/0199; 2018/0474

Re:Nathaniel Whitehall

APPLICANT

AndCivil Aviation Safety Authority

RESPONDENT

DECISION

Tribunal:Deputy President Ian Hanger AM QC

Member Dr Stephen Lewinsky

Date:16 April 2019

Place:Canberra

The tribunal refuses the application under section 35(3) of the Administrative Appeals Tribunal Act 1975 for the applicant’s name to be prohibited from being published or disclosed.

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Deputy President Ian Hanger AM QC

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Member Dr Stephen Lewinsky

Catchwords

PRACTICE AND PROCEDURE – whether order restricting or prohibiting the identity of the applicant should be made – where tribunal’s reasons disclose sensitive and personal information – principle that proceedings before the tribunal should be held in public considered – application is refused

Legislation
Administrative Appeals Tribunal Act 1975, s 35

Cases
Australian Securities and Investments Commission v PTLZ [2008] FCAFC 164
Civil Aviation Safety Authority v Whitehall [2018] NSWSC 1345

John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131

REASONS FOR DECISION

Deputy President Ian Hanger AM QC and Member Dr Stephen Lewinsky

16 April 2019

1. The decision of the tribunal of 14^th of March 2019 relevantly:

   (a)Dismissed proceedings 2018/0199; and

   (b)Affirmed the decision under review in proceedings 2018/0474 to refuse to issue the applicant with a Class 1 medical certificate pursuant to the provisions of the Civil Aviation Safety Regulations 1998.

2. After the decision was communicated to the parties but before it was published on the internet, the applicant asked the tribunal to make an order that his name be replaced in the decision with a pseudonym. That request had not been made in the course of the proceedings and it may be that the tribunal was functus officio. However, given that the decision had not been publicised and that the applicant was not represented at the hearing, we considered the request as being a request pursuant to section 35 of Administrative Appeals Tribunal Act 1975 (‘AAT Act’).

3. The applicant argued that the industry in which he is engaged is a close-knit industry and that the decision is likely to be widely circulated among people who know him. Doubtless that is correct. The decision will reveal personal and sensitive medical information about him. The respondent points out that the applicant has in the past seemed unconcerned about the possibility of public disclosure of the nature of the proceedings before the tribunal prior to the decision being handed down.

4. In a letter dated 2^nd of August 2018 sent to the solicitors acting for the respondent in relation to certain documents which it was alleged that the respondent had obtained through unauthorised means, the applicant stated that: –

   I can confirm that this whole “merry saga” has been supplied to one of Australia’s eminent news organisations, who have been following the story for some months now with a view to a written (perhaps televised) expose. Your client is aware that a journalist attended the most recent directions hearing and will be attending at all future hearings…

5. The directions hearing referred to was the directions hearing held in the tribunal proceedings on 3^rd July 2018. Subsequently, on 20^th of August 2018, The Australian and the Daily Mail Australia published articles identifying the applicant and reporting information about the fact that proceedings were then afoot in this tribunal.

6. The applicant also commenced proceedings in the New South Wales Supreme Court seeking return of documents said to have been obtained by the Civil Aviation Safety Authority through unauthorised means. An injunction was heard in open court seeking restraint of the use of the documents. The decision of the judge on the injunction makes specific reference to the tribunal proceedings relating to the applicant’s medical certification and to his desire to deploy the relevant documents in those proceedings (Civil Aviation Safety Authority v Whitehall [2018] NSWSC 1345).

7. Section 35(3) of the AAT Act authorises the tribunal to direct that the publication of the identity of a party be prohibited or restricted. The Full Federal Court has held that an application under this section should be considered in light of the principle that it is desirable that hearings of proceedings before the tribunal should be held in public (Australian Securities and Investments Commission v PTLZ [2008] FCAFC 164).

8. Kirby J in John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 at 142 said, “… It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts or the issue of suppression orders in their various alternative forms”.

9. The respondent submits that the applicant has allowed the applications to proceed openly; made public statements to the press confirming the nature and existence of the proceedings; a journalist was present at the directions hearing held before the tribunal; and he made public reference to the existence and nature of the proceedings in open court in the Supreme Court of New South Wales.

10. Both the hearing of the proceedings in the tribunal and the decision are matters in which the public have a legitimate interest; that public interest outweighs any possible interest that the applicant may have in having his name changed to a pseudonym.

11. The applicant has not satisfied us that there is good reason to prohibit publication of the name of the applicant.

I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Ian Hanger AM QC and Member Dr Stephen Lewinsky.

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Associate

Dated: 16 April 2019

Date(s) of hearing:	4-7 December 2019; and 12 February 2019
Date final submissions received:	27 March 2019
Applicant’s representative:	Self-represented
Solicitors for the Respondent:	Ms Tanya Canny, Civil Aviation Authority