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 · Roberts v Nine Network Australia Pty Ltd, Supreme Court of Victoria, 18 December 1995 (unreported) Cummins J · Moularas v Nankervis (1985) VR 369 · R v Tait and Bartley (1979) 24 ALR 473 I do not find the unreported judgment in Barrow of much assistance other than, of course, that I accept the "proposition basic to our jurisprudence that proceedings in court must be held in public unless there is some overwhelming reason (to do with the ability of the courts to ensure that justice is done) why proceedings or part of proceedings before court should be held in closed session or why those proceedings should not be published to the public in accordance with the normal practice": Barrow at 4. However the case dealt with S129 of the Health Act (Victoria), a section which provides that if evidence is proposed to be given in any matter relating to HIV the Court, in addition to any other powers it may have, if it is of the opinion that it is necessary to do so because of the social and economic consequences to a person if the information is disclosed, may: (a) order that the whole or any part of the proceedings be heard in closed session, or (b) make certain other orders restricting publication of the proceedings or access to the proceedings by the public or certain persons While S129 provides similar powers to those in S480, the section is a special and specific section applying in specific circumstances and requiring a different test, namely a test of the social and economic consequences of disclosure of specific information. Likewise, with the unreported decision of Roberts, while there is much in the decision with which I agree and much of the decision which provides general and broad assistance, the case essentially dealt with very different circumstances. In that case the Supreme Court granted an interlocutory injunction preventing the identification of the plaintiff, a paranoid schizophrenic, in a TV film taken in court with the consent of the Chief Magistrate. Again, Moularas at 373 dealt with S43(1) of the Magistrates (Summary Proceedings) Act 1975 and since the rulings of the Magistrate as to the publication of proceedings were not challenged, the issues were confined to the circumstances in which committal proceedings should be held in open or closed court. On the other hand the Full Court of the Federal Court decision in Tait was of considerable assistance. At 488 the Full Court referred to the High Court decision in Russell v Russell (1976) 134 CLR 495 at 520: "It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted 'publicly and in open view' (Scott v Scott [1913] AC 417 at 441: [1911-13] All ER Rep 1 at 11)." The Full Court continued: "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 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' (McPherson v McPherson [1936] AC 177 at 200: [1935] All ER Rep 105 at 109). To require a court invariably to sit in closed court is to alter the nature of the court. Of course there are established exceptions to the general rule that judicial proceedings shall be conducted in public, and the category of such exceptions is not closed to the Parliament. The need to maintain secrecy or confidentiality, or the interests of privacy or delicacy, may in some cases be thought to render it desirable for a matter, or part of it, to be held in closed court." Prevention of prejudice to the administration of justice was the reason why I granted a pseudonym order. Confidentiality and interests of privacy and delicacy were associated with the order because it was submitted, and I accepted, that there were concerns that the witness, if identified, might well give evidence which was "less than full and frank". I accepted that, "these concerns stemmed from the fact that the matters about which (the witness was) required to give evidence (were) said to be of a sensitive and personal kind." (Chambers at 146). In my view the further order forbidding publicity of the evidence is more difficult to justify on the grounds of preventing prejudice to the administration of justice. Upon reflection, that order was, on this occasion, not grounded in a conviction on my part of the necessity of such an order to prevent prejudice to the administration of justice. The order forbidding publicity was suggested merely as an option in consideration by Counsel for the Respondent and was described as an option for consideration "in fairness to the Applicant". It was not an essential plank in the submission for a pseudonym order. However, the option suggested for consideration by Counsel for the Respondent was embraced by Counsel for the Applicant who indicated he would not oppose a pseudonym order provided that there was also an order forbidding publication of the evidence. At that stage I considered that the Court was, in effect, being asked to order by consent a pseudonym order and an order forbidding publicity. I considered such an order in those circumstances in the interests of the administration of justice but, upon reflection, I cannot state that then or now I considered the prevention of publicity as essential to prevent prejudice to the administration of justice. I remain somewhat cynical as to whether the Applicant in the present application for variation of my order seeks the variation and the freedom to publish or the freedom to consider publication in the interests of justice and to prevent prejudice to the administration of justice but that is not the test. Having concluded that prevention of publication, or even restriction of publication and restriction of consideration of publication until after judgment in this matter, cannot be grounded in, or meet the test of, prevention of prejudice to the administration of justice, I am, in my view, compelled to grant the application before me and retain the pseudonym order but revoke the order forbidding publication of the evidence. At the hearing of this application, but not when seeking the original pseudonym order, Counsel for the Respondent suggested that the pseudonym order will be of no avail in protecting the identity of the witness if there is publication of the evidence because the Respondent is a large employer and any publication of any of the evidence could lead, and is likely to lead, to other employees of the Respondent identifying the witness. I will simply state that it is very likely that there are employees of the Respondent who already know the identity of the witness and, in any event the pseudonym order was granted to encourage the witness to give full and frank evidence and the witness has given evidence and has been discharged. With that in mind and mindful that justice requires that "an appropriately formulated statement of reasons should be made which conveys an adequate account of the litigation and the reasons underlying orders such as would ensure any confidentiality which a party (or witness) may be entitled to have protected by the orders themselves, and that the orders should be made and formulated so as to give effect to the absolute right of the public to know what orders are being made by the courts": (David Syme and Company Ltd v General Motors Holdens Ltd (1994) 2 NSW LR 294), I have considered a variation of my order to restrict any publication until after judgment. However, as I have already indicated, I do not consider even that limited restriction on publication can be justified on the grounds of preventing prejudice to the administration of justice. Counsel for the Respondent relied in his original application and in opposing variation of the order of 8 August, not only on S480 but also on what he described as "common law grounds" for restricting publication. Firstly, his original application was only for a pseudonym order and that order still stands. Secondly, to the extent that he relied on common law to support a continued prohibition on publication, it must be said that I am bound by S480. In any event, the extensive analysis of the common law position in J v L and A Services Pty Ltd (unreported), Queensland Court of Appeal, 15 February 1993, cited in Chambers at 146 and 147 led to "the importance of open justice (being) affirmed and any exceptions to the principle of open justice...interpreted narrowly". 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." MINUTES OF ORDERS 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. I certify that this and the preceding 8 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan. Associate: Dated: 14 August 1996 Solicitors for the Applicant: Efrons Counsel for the Applicant: Mr John Bailey Solicitors for the Respondent: Phillips Fox Counsel for the Respondent: Mr Philip Burchardt Mr Grant Hattam of Corrs Chambers Westgarth for Herald and Weekly Times Date of hearing: 12 August 1996 Date of judgment: 14 August 1996