Federal Court of Australia Hendry v State of Western Australia [2023] FCA 1670 File number: WAD 296 of 2023 Judgment of: JACKSON J Date of judgment: 22 December 2023 Catchwords: PRACTICE AND PROCEDURE - applications for suppression - no proper basis for suppression of information including respondents' identity - applications dismissed - non-party applications to inspect genuine steps statement - genuine steps statement has not become part of the process of open justice and has extraneous content - access refused Legislation: Australian Human Rights Commission Act 1986 (Cth) ss 46PK, 46PO Civil Dispute Resolution Act 2011 (Cth) ss 6, 7 Federal Court of Australia Act 1976 (Cth) ss 37AE, 37AG, Part VAA, Division 2 Federal Court Rules 2011 (Cth) rr 2.32, 5.03, 8.02 Cases cited: Ferguson v Tasmanian Cricket Association (trading as Cricket Tasmania) [2021] FCA 1507 Hasna v Crown Melbourne Limited [2021] FCA 1066 Herald & Weekly Times Limited v Williams [2003] FCAFC 217; (2003) 130 FCR 435 Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 Oldham v Capgemini Australia Pty Ltd [2015] FCA 1149; (2015) 241 FCR 397 Russell v Russell (1976) 134 CLR 495 Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 39 Date of hearing: 22 December 2023 Counsel for the Applicant: The applicant is self-represented Counsel for the First Respondent: Mr A Shuy Solicitor for the First Respondent: State Solicitors Office Counsel for the Second Respondent: Mr TE Pontre Solicitor for the Second Respondent: McNally & Co Counsel for the Third Respondent: Mr SR Pack Solicitor for the Third Respondent: Piper Alderman Counsel for the Fourth Respondent: The fourth respondent did not appear Counsel for the Fifth Respondent: Mr JE Scovell Solicitor for the Fifth Respondent: Edwards Mac Scovell Legal Counsel for the Sixth Respondent: The sixth respondent did not appear Counsel for Swan Television and Radio Broadcasters Pty Ltd: Ms C Galati ORDERS WAD 296 of 2023 BETWEEN: BRONWYN HENDRY Applicant AND: STATE OF WESTERN AUSTRALIA - DEPARTMENT OF JUSTICE First Respondent KERRI BISHOP Second Respondent JAMES AUGUST Third Respondent ALAN TINDALE Fourth Respondent CHRISTOPHER DOBBS Fifth Respondent RHIANN SCHREUDER Sixth Respondent order made by: JACKSON J DATE OF ORDER: 22 DECEMBER 2023 THE COURT ORDERS THAT: 1. The operation of paragraph 2 of the orders made on 20 December 2023 is extended, in respect of the fifth respondent only, until 5.00 pm AWST on 27 December 2023. 2. The applications for suppression made by the fourth, fifth and sixth respondents are otherwise dismissed. 3. Leave for Seven West Media and Swan Television & Radio Broadcasters Pty Ltd to inspect the applicant's genuine steps statement filed on 21 November 2023 under r 2.32(4) is refused. 4. The registry of the Court is directed to provide access to pages 1-7 of the originating application filed on 21 November 2023 to any member of the public wishing to inspect it. 5. The operation of paragraph 4 is suspended until 5.00 pm AWST on 27 December 2023. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (edited from the transcript) JACKSON J: 1 In this proceeding, the applicant, Ms Hendry seeks remedies for what she alleges was unlawful discriminatory conduct involving sexual harassment, disability and sex-based discrimination. The conduct is alleged to have taken place while Ms Hendry was employed by the Department of Justice at Bunbury Regional Prison. Other persons employed at the prison who are said to have engaged in contravening conduct are named as the second, fourth, fifth and sixth respondents. The third respondent is an employee of the Department of Justice. The first respondent is the State of Western Australia in its capacity as the Department of Justice. 2 The matter came before me for a first case management hearing on Wednesday, 20 December 2023, and was adjourned to 20 March 2024. Ms Hendry informed the Court that she has commenced another complaint before the Australian Human Rights Commission concerning discrimination she alleges she experienced while employed at Bunbury Regional Prison. It thus appeared that it would be convenient and more efficient for the Court to case manage and possibly hear together with this proceeding any proceeding that results if the new complaint is terminated without resolution. So this proceeding has been adjourned off to March 2024 in order to assess, at that time, the progress that the new complaint has made. 3 In that context, several of the respondents have sought suppression of their identities and alternatively, in the case of the fifth respondent, suppression of the details of the complaints that have been made. At the hearing on 20 December 2023, pursuant to s 37AI of the Federal Court of Australia Act 1976 (Cth) I made an interim suppression order without determining the merits of the applications. That order is in force until 5.00 pm today. In addition, two news organisations have made applications for access to the originating application, the complaint and notice of termination before the Human Rights Commission which is required to accompany the originating application, and the genuine steps statement which Ms Hendry filed. Suppression orders 4 Ultimately, the respondents who sought suppression were the fourth respondent, the fifth respondent and the sixth respondent. The fourth and sixth respondents' applications for suppression 5 The fourth and sixth respondents are self-represented. They each appeared at the first case management hearing on Wednesday, but did not appear at today's hearing concerning suppression and access to documents. 6 The fourth respondent made a brief submission at the first case management hearing to the effect that his safety as a prison officer may be compromised if his connection with the proceeding became publicly known. The sixth respondent has filed an interlocutory application in which he seeks suppression of his name from publication in any news media on the basis that, if the details of the complaints against him became publicly available, it would 'make my position at the prison extremely unworkable'. That is supported by a statutory declaration which says the same thing. 7 However, in the absence of any further detail of these claims, let alone how they might bring his application within one of the grounds in s 37AG of the Federal Court of Australia Act 1976 (Cth) which may justify the making of a suppression order, the fourth and sixth respondents have shown an insufficient basis for the making of any suppression order. I made it clear to them at the first case management hearing that to order suppression of details such as their identities would be a serious thing, which the Court would only do on the basis of evidence. And yet, they have filed no evidence and have chosen not to appear at this hearing. 8 I therefore need say no more about the position of the fourth and sixth respondents in relation to suppression. They have not demonstrated any basis on which suppression may be ordered. The basis of the fifth respondent's application for suppression 9 The fifth respondent was represented by counsel and puts his application for suppression on two related bases. 10 First, the fifth respondent relies upon the new complaint to the Australian Human Rights Commission, which is not yet before the Court but which, as I have indicated, may come before the Court in due course, depending on its outcome in the Commission. The fifth respondent submits that because of the provisions of s 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth), there is a real chance that the subject matter of the new complaint which is currently making its way through the Commission will overlap to at least some degree with the subject matter of the complaint which is presently before the Court in this proceeding. That section essentially requires that in any application to the Court, the unlawful discrimination alleged must be the same or the same in substance as the unlawful discrimination based on the complaint to the Commission, or must arise out of the same or substantially the same acts, omissions or practices. Since Ms Hendry says that the two complaints should proceed in the Court together, it is likely that the matters alleged in the new complaint traverse similar matters to those alleged in the current proceeding. Counsel for the fifth respondent submits that, even if that is not so, there is nevertheless a risk that there is overlap or similarity between the subject matters of the two complaints. 11 The relevance of that to suppression, in counsel's submission, is that the Commission will attempt to resolve the new complaint by conciliation on a confidential basis. Counsel points to s 46PK of the Australian Human Rights Commission Act, which provides that proceedings at conciliation conferences before the Commission are to be conducted in private, and also refers to the Commission's Privacy Policy, dated March 2014. The fifth respondent therefore submits that disclosure of the subject matter of the complaint which is presently before this Court might result in disclosure of at least some of the subject matter of the new complaint, and therefore cut across the confidentiality with which the Commission is dealing with that new complaint, as reflected in s 46PK and the Privacy Policy. So the fifth respondent submits that it is necessary to prevent prejudice to the proper administration of justice to suppress details of the allegations made in this proceeding, so as not to remove or compromise the confidentiality of the proceedings before the Commission. 12 The second basis on which the fifth respondent submits that suppression should be ordered is that it would be contrary to the purpose and structure of the Australian Human Rights Commission Act, which is based around confidentiality as between complainants, for the identity of certain of the respondents, or the subject matter of the complaint which is presently before this Court, to be publicly available information. The second basis on which suppression is sought thus mirrors the first basis. Consideration of the fifth respondent's application for suppression 13 The law concerning when suppression and non-publication orders may be made is clear. Section 37AE of the Federal Court of Australia Act provides that in deciding whether to make a suppression order or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. 14 In Russell v Russell (1976) 134 CLR 495 at 520, Gibbs J explained the principle of open justice as follows: It is the ordinary rule of the Supreme Court, as of … other courts of this nation, that their proceedings shall be conducted 'publicly and in open view' … this rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that the courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for 'publicity is the authentic hall mark of judicial as distinct from administrative procedure' … to require a court invariably to sit in closed court is to alter the nature of the court. 15 Hence the circumstances in which it may be appropriate to make an exception to the principles of open justice are limited. It is well established that the word 'necessary' as it appears in s 37AG and a statutory predecessor, former s 50, is a strong word: Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at [30]. 16 Importantly in respect of the basis on which suppression is sought by the fifth respondent in this case, as is reflected in the quote from Russell v Russell, a distinction must be drawn between, on the one hand the activities of administrative authorities such as the Australian Human Rights Commission and imperatives of privacy and confidentiality which may apply in connection with the work they do, and on the other hand proceedings before the Court. Once a matter is brought before the Court, then the principle of open justice, which does not apply to administrative proceedings, becomes important. 17 That is reflected in the decision of the Full Court in Herald & Weekly Times Limited v Williams [2003] FCAFC 217; (2003) 130 FCR 435. That was a case concerning proceedings in the Administrative Appeals Tribunal. Merkel J said at [26], 'Upon a proceeding being commenced in the Federal Court an entirely discrete and different statutory regime applies in respect of court documents, evidence and submissions…'. At [29] His Honour endorsed a 'fundamental difference' between the Administrative Appeals Tribunal, as 'one of the layers of administrative decision-making by the Commonwealth', and this Court exercising the judicial power of the Commonwealth. 18 Although that was a case about the Administrative Appeals Tribunal, where certain taxation proceedings had been conducted in private, I see no relevant distinction for present purposes between that Tribunal and the Human Rights Commission. Whatever the confidentiality of proceedings before the Human Rights Commission, once a matter comes into this Court it is to be conducted in accordance with the principles of open justice outlined above. That is not to say that, in particular instances, the fact of confidentiality or privacy of certain subject matter that has come before the Commission may not be a proper basis to make a suppression order in Court. But generally speaking, any imperative to preserve the confidentiality of matters as they progress in the Commission is not likely to be a good enough reason, by itself, to make a suppression order. That is particularly so given the strong sense in which s 37AG(1)(a) of the Federal Court Act requires that any suppression order will be 'necessary to prevent prejudice to the proper administration of justice'. I therefore do not accept that suppression is appropriate to preserve either the confidentiality of the procedures by which the Commission will resolve the new complaint, or of the procedures by which it did resolve the complaint that is the subject of this proceeding. 19 In truth the question of whether or not the subject matter of the new complaint before the Commission raises similar, or the same, matters as are raised in the complaint which is presently before this proceeding is speculative. That is not a criticism of counsel for the fifth respondent, but it simply reflects the reality that neither the fifth respondent, nor for that matter this Court, has seen the new complaint. The applicant did confirm at the first case management hearing that, as I have said, it concerns matters said to have occurred in relation to Bunbury Regional Prison, but beyond that it is unknown whether there is any overlap with the subject matter of the present proceeding, or indeed any connection with any of the respondents in the present proceeding (with the possible exception of the first respondent). 20 The fifth respondent relies on observations made about the privacy of matters before the Human Rights Commission made by Mortimer J in Oldham v Capgemini Australia Pty Ltd [2015] FCA 1149; (2015) 241 FCR 397: 30 One of the consequences of an applicant deciding to bring a proceeding in this Court under the AHRC Act is that the privacy and confidentiality which attended the Commission's handling of the complaint does not continue in the way this Court deals with the subject matter of the complaint. That fact does not mean, in my opinion, that the complaint as the foundation document in the Commission should not continue to be afforded some protection in this Court, subject always to the considerations relevant in each given case. 31 The Commission deals with complaints of unlawful discrimination under a number of federal statutes. Often, the subject matter of those complaints is intensely personal. Many complainants are not legally represented. They may, to use a colloquialism, 'pour their hearts out' in a complaint to the Commission. However they express their complaints, they do so in the confidence of a private process, designed to facilitate resolution of complaints through confidential conciliation. Once a person elects to proceed to this Court, she or he has a fresh choice about the subject matter of the claim made in this Court, and how it is expressed. She or he cannot materially change or exceed the subject matter complained of before the Commission, but it can be narrowed and circumscribed. It can be couched in different language. In my opinion it would generally be inimical to the purpose and structure of the AHRC Act, which is based around confidentiality as between complainants, the Commission and respondents, for an AHRC complaint to be made available for public inspection in this Court. 21 But Oldham did not concern an application for suppression. It concerned, rather, an application for inspection of a complaint to the Human Rights Commission which had accompanied an originating application in the Court. Mortimer J held that the complaint to the Commission, while required to accompany the originating application, did not form part of the originating application, and therefore leave is required to inspect it because it is not a document that a non-party has the ability to inspect as of right, as set out in r 2.32(2) of the Federal Court Rules 2011 (Cth) (at [23]). The observations her Honour made at [30]-[31] must therefore be understood in that context. It was not in the context of a suppression order. So while her Honour's observations indicate that it can be appropriate to give some protection to the confidentiality of the subject matter of a complaint to the Human Rights Commission, they do not suggest that that concern can or should override the principles of open justice that are reflected in the rigorous requirements of Part VAA, Division 2, of the Federal Court of Australia Act, concerning suppression and non-publication orders. 22 Counsel for the fifth respondent submits that, if disclosure of the subject matter of the complaint were to occur in the absence of a suppression order it would frustrate the requirement for leave to get access to a document such as the complaint to the Human Rights Commission containing the subject matter of the allegations. I do not accept that submission. Rule 2.32 of the Federal Court Rules, which gives non-parties access as of right to certain documents, and requires leave to inspect other documents, reflects the principles of open justice. It reflects the reality that many of the documents for which there is no right of inspection will not have been relied upon or referred to in open court, and so, as a very general proposition, the principles of open justice do not require that non-parties have access to those documents. They will not be necessary to understand the proceedings before the Court: either the basis upon which the proceedings are brought, or the basis upon which they are resolved. 23 There is, therefore, in my view, a fundamental distinction between a complaint which has been aired in open court, where ordinarily transparency would be required, and a complaint which appears in a document which has been filed with the Court, but which has not yet become part of either the foundation of the Court's jurisdiction over the matter - that is, the subject matter of the dispute itself - or part of evidence, submissions or other material on the basis of which the Court has resolved any matter in dispute. If a matter is disclosed in open court, it ordinarily engages the principles of open justice, and to decline to suppress it is not inconsistent with a requirement to obtain leave to inspect a document that may never be used in open court. 24 For those reasons, I do not consider that the fifth respondent has established any proper basis to suppress any information, including his identity, and I will not extend the interim suppression order that I made on Wednesday, although I will hear from the fifth respondent as to whether he seeks any short-term extension for the purposes of considering an appeal. Access to documents 25 At this hearing counsel for one of the media organisations, Swan Television and Radio Broadcasters Pty Ltd, only pressed for access to the genuine steps statement. There was no submission that access to the Australian Human Rights Commission complaint should be given at this stage, although Swan Television may seek access next year. The other media organisation, Seven West Media, did not appear at the hearing. 26 I have already outlined some of the principles relevant to access to documents where leave is required, as explained by Mortimer J in Oldham. In Ferguson v Tasmanian Cricket Association (trading as Cricket Tasmania) [2021] FCA 1507 at [5], her Honour further explained: The rationale for non-parties being given a right to inspect certain documents in a proceeding, including pleadings, is, as Rares J explained in Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836; 154 FCR 293 at [29], the operation of the open justice principle. This principle finds expression in s 17 and s 37AE of the Federal Court of Australia Act 1976 (Cth) (FCA Act). The basic characteristic of open justice is that the public are, as Rares J said at [29], entitled to see 'what is the controversy brought to the court for resolution by it in its ordinary function as a court'. Access to the foundation documents in a proceeding enables the public to understand and follow the resolution of the controversy by the Court. Access also permits fair and accurate reporting of proceedings by the media, which in itself is capable of supporting and advancing the operation of open justice. 27 Counsel for Swan Television submits that access to the genuine steps statement filed in this proceeding should be given because, once a matter comes before the courts, an aspect of the principle of open justice is that the public can and should be educated as to the proceedings in the Court, the procedures of the Court, the mechanisms of relevant legislation such as the Australian Human Rights Commission Act, and how people resolve or seek to resolve their disputes in the Human Rights Commission. 28 Counsel for Swan Television submits that the principles of open justice point in favour of giving access to the genuine steps statement, which will shed light on all of those matters in connection with this particular complaint. Counsel points out that a further reason in favour of providing access is that one of the respondents in this proceeding is the State of Western Australia, and there is a public interest in open and accurate reporting of allegations made against the State and its executive arm. Counsel submits that, if there were concerns about specific content of the genuine steps statement - for example, a concern that it discloses the content of without prejudice communications - then that could be allayed by appropriate redactions. 29 I note that the applicant, Ms Hendry, has also made submissions in support of providing access to the genuine steps statement, and Ms Hendry similarly submits that, if there was a concern about particular content, then that could be met by way of redaction. 30 The State of Western Australia, and as far as I am aware all the respondents, opposes access to the genuine steps statement being given to the news organisations. 31 Counsel for the State drew my attention to the case of Hasna v Crown Melbourne Limited [2021] FCA 1066, in which Mortimer J considered whether or not access to a genuine steps statement should be provided. Her Honour pointed out the statutory bases of genuine steps statements under s 6 of the Civil Dispute Resolution Act 2011 (Cth) and r 8.02 of the Federal Court Rules, and also under other rules (s 7 of the Civil Dispute Resolution Act and r 5.03 of the Federal Court Rules), which require applicants and respondents to file genuine steps statements specifying the steps that have been taken to try to resolve the issues in dispute between the applicant and other parties (at [4]-[5]). 32 After considering some extrinsic material concerning the legislation which introduced the requirement to file genuine steps statements, and the content of s 6 and s 7 of the Civil Dispute Resolution Act itself, Mortimer J observed: 21 Nevertheless, given the purposes of the [Civil Dispute Resolution Act] and the genuine steps statements, it is likely there may well be occasions where the appropriate exercise of discretion is to refuse leave to a third party to inspect such documents. That may especially be so in the early stages of a proceeding, and prior to any mediations conducted as part of the Court's processes. The Court's legislative scheme, its policies and procedures maintain a strong emphasis on mediation and resolution of proceedings without trial. It is appropriate to bear this emphasis in mind when considering the discretion to grant leave to inspect restricted documents, especially documents parties are required to file and which have as their objective the resolution of disputes without the need for adversarial proceedings. 22 These factors weigh in favour of refusing leave to inspect. 23 While I do not accept all the reasons advanced by Crown, I do accept that in some circumstances, granting third party access to genuine steps statements is capable of having a chilling effect on other prospective parties' without prejudice communications prior to the commencement of proceedings. However … genuine steps statements are about the steps the parties have taken, and not the actual content of any confidential discussion. Nevertheless, I accept this matter raised by Crown is a factor to be considered in the exercise of the discretion. 33 At [27] of Hasna, Mortimer J set out observations she made at [24]-[28] of Oldham about the rationale behind the power to permit inspection of a document under r 2.32(4), which is the power sought to be invoked by the news organisations here. Her Honour referred once again to the importance of the public being entitled to understand what the proceeding in the Court is about and how the parties' respective cases are framed, most likely to appear from the originating application and pleadings, and the importance of the public being entitled to follow the course of the proceedings through the processes of the Court. 34 Mortimer J drew a distinction, however, between an affidavit that has been read in open court and an affidavit which has not been read and may stay on the Court file without ever being relied upon in court. Her Honour observed that unless and until it is so relied upon 'it is a document yet to become part of the process of open justice': Oldham at [27]. And as reflected in the extract from Oldham set out above, a Human Rights Commission complaint generally forms no part of the proceeding in the Court. Its existence is simply 'a precondition to, and a constraint on, this Court's jurisdiction' and '[t]he function it performs as a document within the records of the Court is thus a limited one': Oldham at [28]. 35 Thus, her Honour concluded at [28] of Hasna: Genuine steps statements are more closely related to a proceeding in this Court, but are in a quite different category from, for example, pleadings or affidavits. As the [Civil Dispute Resolution Act] makes clear, they are intended to encourage dispute resolution. Where this proceeding is in its early stages, and mediation remains an important aspect of the proceeding, and although the third party seeks access only to Crown's statement, I consider it is not in the interests of the administration of justice for either party's genuine steps statement to be released. I do not consider this is incompatible with open justice principles, and indeed it is compatible with other objectives of civil proceedings, as I have explained. Later in the proceeding, there may well come a time when the factors to which I have given weight have less weight. 36 In my view, Mortimer J's observations in Hasna apply with equal force in this case. The genuine steps statement which has been filed by the applicant does not form either part of the basis of how the applicant's case is framed, or the basis on which the Court is being asked to resolve any matter in dispute between the parties. It has not become part of the process of open justice. As explained in Hasna, it performs a quite different function. 37 Further, the genuine steps statement here does contain matters which go beyond the requirements of a genuine steps statement and the reason why such statements are filed, as reflected in the Civil Dispute Resolution Act. Not only does it refer to and describe attempts to conciliate and settle the dispute, it contains detail of allegations made by Ms Hendry. In that respect, it goes beyond the function of a genuine steps statement, and that is a further reason why, in my view, access to it should not be given. That is in a context where the genuine steps statement does not either describe or circumscribe the basis of how the applicant's case is framed, or otherwise circumscribe the subject matter of the proceeding. Nor has it yet, or is it likely ever, to form any part of the basis of the Court's deliberations in resolving the proceeding as a whole or any aspect of it. 38 I therefore consider that the educative purposes referred to by counsel for Swan Television do not reflect the principles of open justice in such a way as to provide a reason to exercise the discretion in favour of giving access to the genuine steps statement. 39 For those reasons, access to the genuine steps statement will be refused. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson. Associate: Dated: 11 January 2024