FEDERAL COURT OF AUSTRALIA Wotton v State of Queensland (No 3) [2015] FCA 1074 Citation: Wotton v State of Queensland (No 3) [2015] FCA 1074 Parties: LEX PATRICK WOTTON, AGNES WOTTON and CECILIA ANNE WOTTON v STATE OF QUEENSLAND and COMMISSIONER OF THE POLICE SERVICE WHO IS SUED AS THE COMMISSIONER OF THE POLICE SERVICE AND AS REPRESENTING THE MEMBERS OF THE QUEENSLAND POLICE SERVICE ENGAGED IN THE IMPUGNED CONDUCT File number: QUD 535 of 2013 Judge: MORTIMER J Date of judgment: 28 September 2015 Catchwords: PRACTICE AND PROCEDURE – application for closure of the Court and suppression orders in respect of evidence concerning psychological condition of applicants – emphasis on principle of open justice under Federal Court of Australia Act 1976 (Cth) s 17– subject matter of proceeding of substantial public interest – potential distress to witnesses insufficient basis for closure of the Court – application refused Legislation: Federal Court of Australia Act 1976 (Cth) ss 17, 17(1), 17(4), 37AF, 37AG, 37AI, Pt VAA Div 2 Federal Court Rules 2011 (Cth) rr 1.32, 2.32 Cases cited: John Fairfax Group Pty Ltd v Local Court (NSW) (1991) 26 NSWLR 131 Date of hearing: 25 September 2015 Place: Palm Island Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 11 Counsel for the applicants: Ms C Ronalds SC with Mr J Creamer and Ms S Pointing Solicitor for the applicants: Levitt Robinson Solicitors Counsel for the respondents: Mr M Hinson QC with Mr S McLeod and Mr S Forrest Solicitor for the respondents: Crown Law Queensland IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 535 of 2013 BETWEEN: LEX PATRICK WOTTON First Applicant AGNES WOTTON Second Applicant CECILIA ANNE WOTTON Third Applicant AND: STATE OF QUEENSLAND First Respondent COMMISSIONER OF THE POLICE SERVICE WHO IS SUED AS THE COMMISSIONER OF THE POLICE SERVICE AND AS REPRESENTING THE MEMBERS OF THE QUEENSLAND POLICE SERVICE ENGAGED IN THE IMPUGNED CONDUCT Second Respondent JUDGE: MORTIMER J DATE OF ORDER: 28 SEPTEMBER 2015 WHERE MADE: TOWNSVILLE THE COURT ORDERS THAT: 1. The applicants' oral application for closure of the Court and certain suppression orders as set out in the applicants' proposed minute of order dated 27 September 2015 be refused. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth). IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 535 of 2013 BETWEEN: LEX patrick WOTTON First Applicant AGNES WOTTON Second Applicant CECILIA ANNE WOTTON Third Applicant AND: STATE OF QUEENSLAND First Respondent COMMISSIONER OF THE POLICE SERVICE WHO IS SUED AS THE COMMISSIONER OF THE POLICE SERVICE AND AS REPRESENTING THE MEMBERS OF THE QUEENSLAND POLICE SERVICE ENGAGED IN THE IMPUGNED CONDUCT Second Respondent JUDGE: MORTIMER J DATE: 28 SEPTEMBER 2015 PLACE: TOWNSVILLE REASONS FOR RULINGS 1 The applicants have sought a range of orders which may be authorised under s 17 of the Federal Court of Australia Act 1976 (Cth), as well as ss 37AF and 37AI of the Act. The applicants, in fact, did not invoke these provisions but, rather, invoked r 1.32 of the Federal Court Rules 2011 (Cth). I am satisfied the provisions to which I have referred are the appropriate provisions under which to consider this application. 2 The orders sought were: 1. Pursuant to rule 1.32 of the Federal Court Rules 2011 (Cth) (FCR), the Court be closed to all persons except for the legal representatives of the Applicants and of the Respondents during the evidence to be given by: a. Lex Patrick Wotton (First Applicant); b. Cecilia Anne Wotton (Third Applicant); and c. Stephen Ralph insofar as that evidence concerns the psychological condition of the First and/or the Third Applicant and, in particular, insofar as it relates to the damages sought by the First and/or the Third Applicant for psychological pain and suffering or other psychological injuries. 2. Alternatively: a. the Court be closed during the giving of the evidence referred to in paragraph 1 above except to: i. the legal representatives of the Applicants and of the Respondents; and ii. accredited members of the media; and b. pursuant to Federal Court of Australia Act 1976 (Cth) s 37AF, the persons referred to in paragraph 2(a) above be restrained from publishing, disseminating, or otherwise making public any information that comprises or is about the evidence referred to in paragraph 1 above. 3 In my opinion, the current provisions of the Federal Court Act place great weight and emphasis on the principle of open justice, and the amendments which introduced s 17 together with the terms of s 17 reflect that emphasis. The orders in the form proposed by the applicants are too wide and vague. I would not make such orders. Accordingly, I have considered this application by reference to the possibility that a more tailored form of orders could be drafted and proposed. Even on that basis, I am currently not satisfied that any orders should be made. 4 The orders sought cover aspects of the evidence of Mrs Cecilia Wotton, Mr Lex Wotton and Mr Stephen Ralph, the psychologist who has prepared a report on those two individuals and others. The applicants propose to tender Mr Ralph's report in this proceeding in support of their damages claim. The evidence of Mr and Mrs Wotton over which orders are sought also goes to their damages claim. The applicants seek orders for the closure of the Court. That aspect of their application must be considered by reference to s 17 of the Federal Court Act. The applicants have also sought suppression or non-publication orders. That aspect of their application must be considered by reference to Div 2 of Pt VAA of the Federal Court Act. 5 No evidence has been adduced in support of the application. It has not been said, for example, that Mr or Mrs Wotton would not proceed to give the evidence sought to be covered by the orders if an order was not made. The precise nature of their difficulties in giving the evidence has not been articulated in any evidence supporting the application, nor in submissions. 6 As to the closure of the Court, I am not persuaded, as matters currently stand, that the Court should be closed. It is a very large step, and it is contrary to the clear emphasis in s 17(1) of the Federal Court Act, which provides: Except where, as authorised by this Act 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. 7 I must be satisfied, pursuant to s 17(4), that the presence of the public is contrary to the interests of justice while that evidence is being given. This proceeding is a class action on behalf of the Palm Island community in respect of events that have had sustained and extensive coverage and commentary. The subject matter of the proceeding, concerning the conduct of the Queensland Police (at a systemic and at an individual level) and allegations that the conduct was racially discriminatory, are matters of substantial public interest. 8 This is not a claim arising from conduct between two individuals, as, for example, some sexual harassment cases may be. Even then, the performance of a court's function in public can not infrequently mean individual witnesses are placed in situations that cause them distress, anxiety, humiliation or shame in giving evidence, whether or not they are responsible for the behaviour that gives rise to their distress. It has been said many times that this aspect of justice being administered in public is an insufficient basis to close a court: see for example John Fairfax Group Pty Ltd v Local Court (NSW) (1991) 26 NSWLR 131 at 142-143 per Kirby J. 9 In that sense, when a person brings a claim seeking to vindicate asserted legal rights and alleging damage of a personal nature, it takes great courage and fortitude to submit to the public scrutiny that is involved. The applicants are seeking very significant remedies against the respondents, who are said to be vicariously liable for the conduct of the individual police officers involved, as well as principally liable. The applicants seek not only compensation but aggravated and exemplary damages. They seek those damages on their own behalf, with damages for class members needing to be separately assessed. In my opinion, it is imperative that the evidentiary base for those claims is publicly given. In a case such as this, it would be inappropriate for the Court to have to address issues of damages in a secret and non-public way. 10 As to the suppression orders sought, my views are essentially the same. I note that other witnesses in this proceeding have already given very sensitive evidence which has greatly distressed many of them, and they have done so in accordance with the principles of open justice and without suppression orders. At the moment, there is no evidentiary basis on which I consider I can make a distinction in relation to Mr and Mrs Wotton. I am not satisfied that any of the grounds in s 37AG are made out for the broad orders sought or any other forms of orders of that nature. It may be that much more limited suppression orders over particular aspects of the evidence can be considered. That would depend on a much more precise articulation by the applicants of what the sensitivities especially are and how the interests of the administration of justice would be prejudiced if those suppression orders were not made. 11 I note, in closing on this ruling, that Mr Ralph's report annexed to his affidavit will not be available for public inspection without my leave: see r 2.32 of the Federal Court Rules. If any application is made to inspect Mr Ralph's affidavit, I will give the parties an opportunity to be heard before making any decision. Otherwise, it will be a matter for the parties how they conduct their examination and cross-examination of Mr Ralph so as to address any sensitivities about the content of his report, and if any further applications need to be made in relation to the conduct of his evidence, they can be made at an appropriate time. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Rulings herein of the Honourable Justice Mortimer. Associate: Dated: 5 October 2015