X v Human Rights & Equal Opportunity Commission

[1995] FCA 1131

1131 45

JUDGMENT No. ........ ........ .. nw..wr

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALaES DISTRICT REGISTRY ) NO. NG 324 of 1995

GENERAL DIVISION 1

Between: - "X"

Applicant

WMAN

OPPORTUNITY COMMISSION &

R -

First Respondent

And : ANOTHER

Second Respondent

EINPELD a SYDNEY 15 MAY 1995

Each party has filed a motion for the suppression, for the purposes of the current proceedings before this Court, of the names of both the applicant and the second respondent. The

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affidavit filed in support of the motion brought by the second respondent is somewhat more expansive than merely the identity of the second respondent. It seems to be anxious to protect the contents of documents that have been supplied to the applicant and the confidentiality of what is described as "those managers and partners referred to in the documentation".

There is a reference to the fact that information which has been supplied by the second respondent to the applicant is "of a sensitive commercial character beingvarious staffingevaluations which also reveal the second respondent's marketing strategies".

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In other words, it is suggested that not merely should the names of the parties be suppressed but that other information which may come before the hearing should also not be revealed to the public. This would of course be necessary in case the names do become public by some other method, or in case the Human Rights Commission decides at some stage that the names of the parties or in documents before it should be made public. I say this because the present situation is that the Human Rights Commission has made an order for the suppression of both parties' names and, as has been noted in submissions, the present proceeding before the Federal Court is of an interlocutory or procedural nature rather than a substantive hearing of the issues between the parties.

The legislatures in the whole of the Australian Commonwealth have frequently had the opportunity to review the whole question of the publicity that ought to be given to proceedings before the various courts of the country. Over quite a l ~ n g period a number of complaints have arisen, often justified, that the mass media or elements of the mass media have misrepresented in a substantial way proceedings before courts and tribunals, misquoted or selectively quoted from hearings in such a way as to give a completely false impression, and even misquoted or selectively quoted written judgments given by judges which have adversely reflected on both the parties and the judge concerned without merit or justification.

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Yet the legislatures have successively declined to vary the general rule that all proceedings before all courts and tribunals should be held in public. However, the legislatures have also provided a mechanism by which courts and tribunals can suppress various aspects of the proceedings before them. These capacities for suppression have been exercised on a number of occasions in relation to sensitive information, matters going to the security of the country, or important public interests, as well as the protection of privacy and private interests in relation to the parties before the court, and non-parties brought before the court by the parties.

What is being sought in these motions is the suppression of the names of the parties in the current proceedings before the Federal Court. The parties have each advocated for the suppression orders and, although the matter is one within the peculiar discretion of the Court, it will not be common in adversarial proceedings that the Court will of its own motion go outside the submissions of the adversaries before it. Only if there is a very strong public interest over which the parties' private interests are attempting to prevail, will the Court be likely to inject a third viewpoint which is at odds with those being presented by the parties.

I have heard the submissions put on behalf of the parties in relation to the motions which are before the Court, and have come to the conclusion not without a little hesitation that the application should be acceded to. There will therefore be an

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order pursuant to section 50 of the Federal Court of Australia Act that the names of the applicant and the second respondent be suppressed and that they be referred to in the proposed proceedings so far as concerns the applicant as " X " , and so far as concerns the second respondent as "Another". There will also be an order prohibiting the publication of information and details of the complaint before the Human Rights and Equal Opportunity Commission as would enable either party to be identified.

As far as I can see that will still permit the reporting of the proceedings here sufficiently to identify the matters which are to be debated here today. There will be liberty to apply in respect of these orders should the circumstances change.