FEDERAL COURT OF AUSTRALIA PVYW v Comcare Australia [2011] FCA 535 Citation: PVYW v Comcare Australia [2011] FCA 535 Appeal from: Appeal from a decision of the Administrative Appeals Tribunal Parties: PVYW v COMCARE AUSTRALIA File number: NSD 1761 of 2010 Judge: NICHOLAS J Date of judgment: 20 May 2011 Catchwords: PRACTICE AND PROCEDURE – application for suppression of applicant's name – s 50 of the Federal Court of Australia Act 1976 (Cth) – consideration of principle of open justice – whether suppression necessary to prevent prejudice to the administration of justice – applicant suffering psychological injuries –applicant will not continue proceeding if name not suppressed –proceeding involves matters of statutory interpretation based upon agreed facts – application not motivated by simple desire to avoid embarrassment or ridicule – order made to suppress applicant's name Legislation: Federal Court of Australia Act 1976 (Cth) s 50(1) Administrative Appeals Act 1975 (Cth) s 35(2) Cases cited: Attorney-General (NSW) v Nationwide News Pty Ltd (2007) 73 NSWLR 635 Australian Broadcasting Commission v Parish (1980) 29 ALR 228 Commission of Taxation v H (2010) 268 ALR 101 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 Hogan v Australian Crime Commission & Ors (2010) 240 CLR 651 X v Australian Prudential Regulation Authority (2007) 226 CLR 630 Date of hearing: 17 May 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 24 Counsel for the Applicant: Mr LT Grey Solicitor for the Applicant: Pappas, J. – Attorney Solicitor for the Respondent: Sparke Helmore Lawyers IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1761 of 2010 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: PVYW Applicant AND: COMCARE AUSTRALIA Respondent JUDGE: NICHOLAS J DATE OF ORDER: 20 May 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Pursuant to Section 50 of the Federal Court of Australia Act 1976 and subject to any further order or direction of the Court: (a) publication of the true name and address of the applicant, as described in confidential exhibit EX1 to the Affidavit of Nigel John Gabbedy affirmed 9 February 2011, be forbidden; (b) this proceeding continue on the basis that the applicant be identified by the pseudonym "PVYW" in all documents filed in relation to the appeal, or generated by the Court Registry, and in the Reasons for Decision ultimately given by the Court. 2. There be no order as to the costs of the applicant's notice of motion. 3. The proceeding is to stand over to a date to be fixed by arrangement with the associate to Nicholas J. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1761 of 2010 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: PVYW Applicant AND: COMCARE AUSTRALIA Respondent JUDGE: NICHOLAS J DATE: 20 May 2011 PLACE: SYDNEY REASONS FOR JUDGMENT 1 Before me is a notice of motion filed by the applicant seeking orders pursuant to s 50(1) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). The orders sought are these: 1. That, pursuant to Section 50 of the Federal Court of Australia Act 1976, publication of the true name and address of the applicant, as described in confidential attachment EX1 to the Affidavit of Nigel John Gabbedy affirmed 9 February 2011, be forbidden. 2. That the appeal in these proceedings continue on the basis that the applicant be identified by the pseudonym "PVYW" in all documents filed in relation to the appeal, or generated by the Court Registry, and in the Reasons for Decision ultimately given by the Court. The respondent neither consents to nor opposes the orders sought by the applicant. 2 When the present application was first before me it was adjourned for the purpose of enabling the applicant to adduce more detailed evidence beyond what was originally filed. The evidence now includes evidence from the applicant and various medical experts. It also includes a detailed report from a counsellor who has worked with the applicant. 3 The substantive proceeding in which the present motion was filed is an appeal from the decision of the Administrative Appeals Tribunal (the Tribunal) affirming a decision of the respondent rejecting the applicant's claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). Of course, the substantive proceeding is not an appeal in the strict sense but rather an application commenced in the original jurisdiction of this Court: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 581. 4 The facts as considered by the Tribunal, and as I shall now outline, were agreed by the applicant and the respondent for the purposes of the proceeding before the Tribunal. 5 In November 2007 the applicant was employed in a Commonwealth department. She was required by her employer to visit a regional office in New South Wales and her employer arranged for her to stay in a nearby motel. During the course of her stay at the motel, the applicant suffered physical injuries while having sex with an acquaintance. A glass light fitting above the bed was pulled from its mount by either the applicant or her acquaintance. It struck the applicant on the nose and mouth. As a result, she suffered physical and psychological injuries. 6 The central issue which the Tribunal was called upon to decide was whether the respondent was liable to pay the applicant compensation for a physical or mental injury arising out of, or in the course of, the applicant's employment: see s 5A(1)(b) and s 6 of the SRC Act. The Tribunal decided this issue against the applicant. The applicant says that in reaching this decision the Tribunal misinterpreted the relevant statutory provisions. 7 In the proceeding before the Tribunal the applicant was referred to by a pseudonym so as to protect her identity after the Tribunal made an order pursuant to s 35(2) of the Administrative Appeals Act 1975 (Cth) (the AAT Act). She accepts that the considerations relevant to the making of orders under s 50(1) of the FCA Act are different to those which informed the Tribunal's decision to make an order under s 35(2) of the AAT Act. 8 Section 17 of the FCA Act provides: (1) Except where, as authorized by this section or another law of the Commonwealth, the jurisdiction of the Court is exercised by a Judge sitting in Chambers, the jurisdiction of the Court shall be exercised in open court. (2) The jurisdiction of the Court may be exercised by a Judge sitting in Chambers in: (a) a proceeding on an application relating to the conduct of a proceeding; (b) a proceeding on an application for orders or directions as to any matter which, by this Act or any other law of the Commonwealth, is made subject to the direction of a Judge sitting in Chambers; and (c) a proceeding on any other application authorized by the Rules of Court to be made to a Judge sitting in Chambers. (3) A Judge may order a proceeding in Chambers to be adjourned into court. (4) The Court may order the exclusion of the public or of persons specified by the Court from a sitting of the Court where the Court is satisfied that the presence of the public or of those persons, as the case may be, would be contrary to the interests of justice. 9 Section 50(1) of the FCA Act provides: (1) The Court may, at any time during or after the hearing of a proceeding in the Court, make such order forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth. 10 Section 17 of the FCA Act reflects the principle of "open justice" which requires the Court to exercise its jurisdiction in open court. As the Full Court explained in Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 at [121]: The principle of open justice operates on the premise that all the material placed in evidence before a court and on which, in open court, it is asked to act is open to public scrutiny. That is because publicity itself has the purposes of both informing the public of how judicial power is exercised and ensuring that the courts are accountable for the use of that power entrusted to them. Administrative power can be, and frequently is, exercised in secret. Judicial power almost never is and, when it is, the departure from the ordinary mode of trial must be demonstrated to be necessary in the interests of justice. 11 Section 50(1) allows for some encroachment upon that principle in circumstances where an order forbidding or restricting the publication of evidence or the name of a party or witness "appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth". Of the two species of prejudice identified in s 50(1), it is only the former – prejudice to the administration of justice – that is relevant to the present application. 12 In Hogan v Australian Crime Commission & Ors (2010) 240 CLR 651 the High Court said at [30]-[33]: [30] As it appears in s 50, "necessary" is a strong word. Hence the point made by Bowen CJ in Australian Broadcasting Commission v Parish, that the collocation of necessity to prevent prejudice to the administration of justice and necessity to prevent prejudice to the security of the Commonwealth "suggests Parliament was not dealing with trivialities". Further, as indicated earlier in these reasons: (a) s 50 is an example of a provision authorising the Federal Court to make orders for the exercise of its jurisdiction other than in open court as mandated by s 17(1); and (b) "the administration of justice" spoken of in s 50 is that involved in the exercise by the Federal Court of the judicial power of the Commonwealth; this is a more specific discipline than broader notions of the public interest. [31] It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some "balancing exercise", the order appears to have one or more of those characteristics. [32] If it appears to the Federal Court, on the one hand, to be necessary to make a particular order forbidding or restricting the publication of particular evidence or the name of a party or witness, in order to prevent either species of prejudice identified in s 50, or, on the other hand, that that necessity no longer supports the continuation of such an order, then the power of the Federal Court under s 50 is enlivened. The appearance of the requisite necessity (or supervening cessation of it) having been demonstrated, the Court is to implement its conclusion by making or vacating the order. The expression in s 50 "may ... make such order" is to be understood in this sense. [33] It may tend to distract attention from the particular terms of s 50 to describe the Federal Court as embarking upon the exercise of a "discretion" when entertaining an application under s 50. Once the Court has reached the requisite stage of satisfaction, it would be a misreading of s 50 to treat it as empowering the Court nevertheless to refuse to make the order, or to leave in operation the now impugned order. It would, for example, be an odd construction of s 50 which supported the refusal of an order under s 50 notwithstanding that it appeared to the Court to be necessary to make an order to prevent prejudice to the security of the Commonwealth. [footnotes omitted] 13 The applicant suggested that the High Court in Hogan found that it was not appropriate for the Court to engage in any "balancing exercise" in considering an application under s 50 of the FCA Act. I do not think this is correct. The High Court rejected the proposition (at para [31]) that an order under s 50 could be made on the basis that such an order appeared "to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some 'balancing exercise', the order appears to have one or more of those characteristics." In a footnote to its reasons the High Court referred with approval to a statement by Fullerton J to like effect which was quoted with approval by Hodgson JA (Hislop and Latham JJ agreeing) in Attorney-General (NSW) v Nationwide News Pty Ltd (2007) 73 NSWLR 635 at 641 where her Honour said that it is not sufficient that suppression of the information would be "convenient, reasonable or sensible, or that it serves the public interest, or even on balance serves the public interest". 14 Commission of Taxation v H (2010) 268 ALR 101 was decided before Hogan. It also involved some highly unusual facts. At para [14] of that judgment I said: The Full Court decision in Australian Broadcasting Commission v Parish (1980) 29 ALR 228 is still the leading case on s 50 of the Act and is authority for a number of basic propositions concerning the operation of that provision. The first of these is that, as a matter of general principle, the Court must exercise its jurisdiction in open Court. This is sometimes referred to as the principle of open justice. However, s 50 of the Act allows for some encroachment upon that principle. The application of the section calls for a consideration of the prejudice to the administration of justice that would arise if no order was made weighed against the degree of the encroachment involved if an order was made. The degree of encroachment is an important factor to be weighed in the scales in deciding whether or not a s 50 order should be made. 15 In Hogan the High Court made it clear that if the Court is satisfied that prejudice to the administration of justice will result if no s 50 order is made then a s 50 order should be made: see Hogan at para [30]. Nevertheless, in determining whether it is satisfied that a s 50 order is necessary in order to prevent prejudice to the administration of justice, the Court must evaluate the nature and extent of the hardship that would be suffered by a litigant or witness were he or she to be refused the benefit of such an order. Such hardship will often need to be weighed up along with other considerations relevant to the broader question whether the administration of justice would be prejudiced if no s 50 order was made. 16 In Hogan the High Court also referred with approval to the judgment of Bowen CJ in Australian Broadcasting Commission v Parish (1980) 29 ALR 228 at 233. Their Honours said at para [42]: The administration of justice by the Federal Court, which is the focus of s 50, certainly includes not only the generally recognised interest in open justice openly arrived at which is reinforced by the terms of s 17(1), but also restraints upon disclosure where this would prejudice the proper exercise of its adjudicative function. Bowen CJ pointed this out in Australian Broadcasting Commission v Parish. His Honour went on to describe the litigation in Parish as analogous to a case where confidential information "is the subject matter of the proceedings"; he concluded that it was in the interests of justice that the processes for determination of those very proceedings not destroy or seriously depreciate the value of that subject matter. [footnotes omitted] 17 The present case is not analogous to a confidential information case in that it cannot be said that the subject matter of the appeal will be destroyed in the event that a s 50 order is not made. Nevertheless, if no s 50 order is made for the purpose of protecting the identity of the applicant then, in a practical sense, she will be required to abandon her appeal. In X v Australian Prudential Regulation Authority (2007) 226 CLR 630 at 654-655 Kirby J referred to s 50 of the FCA Act and the limitations upon the Court's power to make orders suppressing the names of parties under that section. His Honour said at para [86]: A case in which the use of names would seriously impede or discourage access to the courts might be another instance in which anonymity would be justified according to the statutory formula. Hence, there may be a point where the harm that might be suffered by a party who is required to publically disclose his or her identity in order to have the Court adjudicate upon his or her rights might be considered prejudicial to the administration of justice. 18 The evidence before me establishes that the applicant has been diagnosed as suffering from clinical depression and clinical anxiety. The evidence also suggests that the applicant is at risk of committing suicide. It is apparent from the evidence that the applicant's psychological problems extend back at least to the time she suffered the injuries the subject of her claim for compensation. It is also apparent from the evidence that the applicant is not prepared to continue with the substantive proceeding if a consequence of doing so is that her true identity will be made public. She says that she will discontinue her appeal if no order concealing her true identity is made. There is no reason to doubt the veracity of that evidence. 19 There are a number of other considerations relevant to the present case which lead me to conclude that the administration of justice would be prejudiced unless an order under s 50 is made protecting the identity of the applicant. 20 First, this is not a case in which the facts underlying the applicant's claim are contested. As I have mentioned, the Tribunal's decision was based upon agreed facts and the Court's decision in the substantive proceedings will be based upon the same agreed facts upon which the Tribunal's decision was based. 21 Secondly, the substantive proceeding is neither criminal nor quasi criminal in nature. There is no suggestion of any wrongdoing by the applicant. The questions that arise in the substantive proceeding involve matters of statutory interpretation. Nothing turns on the identity of the applicant save that, as is accepted by the respondent, she is the same person who made the application to set-aside the relevant administrative decision which was affirmed by the Tribunal. 22 Thirdly, I am satisfied that this is not a case where the application for orders under s 50 is motivated by the simple desire to avoid embarrassment or ridicule that might be suffered by a person who is party to a judicial proceeding involving matters that might ordinarily be considered private or personal. 23 There will be many cases in which the higher purposes of s 12 of the FCA Act and the principle of open justice underlying it would make it impossible to hold that the risk of hardship to an applicant in the absence of a s 50 order is such that it is necessary to make a s 50 order so as to prevent prejudice to the administration of justice. But the hardship that would arise in this case when considered along with the other factors to which I have referred place it in a different category. In my view the ends of justice would be defeated in the event that the applicant was compelled to make a public disclosure of her identity if she is to continue with her appeal. In this case I am satisfied an order under s 50 is necessary to prevent prejudice to the administration of justice. 24 I think it appropriate that there be no order as to the costs of the notice of motion. The substantive proceedings will be fixed for directions at a date to be fixed by arrangement with my associate. I propose to make orders accordingly. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate: Dated: 20 May 2011