Mitchell v Citibank Ltd [1996] IRCA 372

DECISION NO: 372/96 C A T C H W O R D S INDUSTRIAL LAW - unlawful termination - prohibition of publication of evidence Industrial Relations Act 1988 ss.373 and 480 CASES:

ABC v Parish (1980) 43 FLR 129. Chambers v James Cook University (No 2) (1995) 61 IR 145 Creevy and Salesian Society (Vic) Incorporated Supreme Court of Victoria (unreported), 24 August 1993

Herald and Weekly Times Limited and Others and Barrow and Others Supreme Court of Victoria, 29 June 1993 (unreported)

Roberts v Nine Network Australia Pty Ltd, Supreme Court of Victoria, 18 December 1995 (unreported)

Moularas v Nankervis (1985) VR 369

R v Tait and Bartley (1979) 24 ALR 473

McPherson v McPherson [1936] AC 177

Russell v Russell (1976) 134 CLR 495 at 520

Scott v Scott (1913) AC 417

David Syme and Company Ltd v General Motors Holdens Ltd (1994) 2 NSW LR 294

J v L and A Services Pty Ltd (unreported), Queensland Court of Appeal, 15 February 1993 MITCHELL -v- CITIBANK LTD No. VI-1224 of 1996 Before: Ryan JR Place: Melbourne Date: 14 August 1996

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI-1224 of 1996 B E T W E E N : WALTER MITCHELL Applicant AND CITIBANK LTD Respondent MINUTES OF ORDERS Judicial Registrar Ryan 14 August 1996 THE COURT ORDERS: 1. The order of the Court is that the order of 8 August forbidding the publication of the evidence and the name and address of a witness referred to as "Ms A" be amended so that the order now reads: "The Court orders, pursuant to Section 480 of the Industrial Relations Act 1988, that publication be prohibited of the name and address of a witness referred to as "Ms A", a witness who gave evidence on 8 August 1995." NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI-1224 of 1996 B E T W E E N : WALTER MITCHELL Applicant AND CITIBANK LTD Respondent Before: Ryan JR Place: Melbourne Date: 14 August 1996 S480 - PROHIBITION OF PUBLICATION OF EVIDENCE On 8 August 1996, on the third day of a trial of an Application for reinstatement in a claim of unlawful termination, Counsel for the Respondent sought an order under S480 forbidding the publication of the name of a witness. This was, in effect, an application for a pseudonym order which would have the effect of avoiding the public identification and publication of the name and address of a particular witness. For reasons which I will mention later, Counsel for the Applicant did not oppose a pseudonym order provided that the order under S480 also forbade the publication of the evidence of the witness. An order was made which forbade publication of the name and evidence of the witness. At the conclusion of the third day of the trial, the case was adjourned part heard to 12 August. At the commencement of the fourth day on 12 August Mr Hattam appeared on behalf of the Herald Sun Newspaper. He sought an order varying the order which forbade publication of the evidence. He did not seek any variation or change in the pseudonym order, that is he sought no order which might lead to the publication of the name and address of the witness. I will commence by paraphrasing Sir Nigel Bowen and Franki J in ABC v Parish (1980) 43 FLR 129 at 132 and 147. I note that the passages were cited by Spender J in Chambers v James Cook University (No 2) (1995) 61 IR 145 at 147. The Industrial Relations Court of Australia was established by statute. It is clear from S373(1) that, in general, it is obliged to exercise its jurisdiction in open court. This provision gives statutory force to the principle that justice must be administered publicly in open court and gives recognition to the weight of public interest which attaches to that principle. However, S373(4) and S480 provide for encroachment upon that principle. Cases which deal with the course the court should follow where there are no sections corresponding with ss373 and 480, although illuminating and helpful, are not decisive for a court constituted by an Act containing those sections. Such a court has the slightly different task of interpreting and applying the statute which governs it. The legislature, by providing as it has specific powers under ss373 and 480 has intended that the court, in an appropriate case, should exercise these powers. Whilst every regard must be had to the desirability of conducting proceedings in open court I considered it necessary to make orders under S480 to ensure that a party was not prejudiced and to prevent prejudice to the administration of justice. This is not a case in which an order was sought or granted for any or all proceedings to be held in camera. In that sense, this case may be distinguished from Chambers where, at first instance, earlier proceedings before a Judicial Registrar were held in camera by consent of the parties. However, while no application is made in this case for the evidence of the particular witness to be heard in camera, the possibility of such a consideration was raised by Counsel for the Respondent on the basis that if I was to accede to a pseudonym order to protect the identify of a particular witness, a witness for the Respondent, then the Court and/or Counsel for the Applicant might wish to consider, in fairness to the Applicant, the possibility of an order for the evidence of the witness to be in camera or an order for prohibition of publication of the evidence. Even before Counsel for the Applicant addressed on the Respondent's application for the pseudonym order, I indicated that on the basis of the submission made, I was not prepared to contemplate an order under S373(4) for any evidence to be taken in camera. Counsel for the Applicant then indicated that he would not oppose a pseudonym order provided that an order was also made prohibiting publication of the evidence of that particular witness. I treated the position taken by both Counsel as consent to an order pursuant to S480 which forbade the publication of: (i) the name of the witness (ii) the evidence of the witness Mr Hattam submitted that: (i) the order forbidding publication of the evidence could not be validly based on possible embarrassment to the witness (ii) "there is a great deal of difference between embarrassment and the denial of natural justice": Creevy and Salesian Society (Vic) Incorporated Supreme Court of Victoria (unreported) 24 August 1993 Nathan J at 2 (iii) "suppression orders are granted rarely, and not as a matter of course, especially so if the function is to absolve the parties (or here a witness) from embarrassment or public teasing": Creevy at 4 (iv) "it cannot be the Court should be enticed into proceeding secretly at the option of or at the request of litigants": Creevy at 4 In urging the Court to permit publication of the evidence of the witness, Mr Hattam argued that the pseudonym order would still stand and that such order was sufficient to prevent any prejudice to the administration of justice which might be thought to flow from identification of the witness. He also suggested, and I agree, that there is no ground for assuming that his client would be other than scrupulous and careful in avoiding any identification of the witness in the event that the paper was able to publish and elected to publish any report of the evidence. He cited a number of cases including: · Herald and Weekly Times Limited and Others and Barrow and Others Supreme Court of Victoria, 29 June 1993 (unreported) Harper J