Gaitely v Public Transport Corporation [1996] IRCA 600

DECISION NO:600/96 C A T C H W O R D S INDUSTRIAL LAW - PRACTICE AND PROCEDURE - suppression of applicant's name - whether prejudice to the administration of justice - balance between prejudice and public interest in open justice. Workplace Relations Act (Cth) 1996 ss.170EA, 373, 480 CASES: Chambers v James Cook University of North Queensland (No. 2) (1995) 61 IR 145 ; Rimmer v Ormond College Council (1995) 64 IR 39; M v Australia National University (unreported, IRCA, Moore J, 20 August 1996); Brooke & ALHMU v Coppin Cafe Pty Ltd (unreported, IRCA, Murphy JR, 16 October 1996); Phillipa v Carmel (unreported, IRCA, Ritter JR, 10 September 1996). TERRY DREW GAITELY -v- PUBLIC TRANSPORT CORPORATION No. VI2052 of 1996 Before: Boon JR Place: Melbourne Date: 6 December 1996

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI2052 of 1996 B E T W E E N : DREW GAITELY Applicant AND PUBLIC TRANSPORT CORPORATION Respondent MINUTES OF ORDERS Judicial Registrar Boon 6 December 1996 THE COURT ORDERS: 1. The applicant's Notice of Motion is dismissed. 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-2052 of 1996 B E T W E E N : DREW GAITELY Applicant AND PUBLIC TRANSPORT CORPORATION Respondent Before: Boon JR Place: Melbourne Date: 6 December 1996 REASONS FOR JUDGMENT These reasons for judgment relate to the applicant's Notice of Motion heard on 6 December 1996. The Notice of Motion filed with the Court moved for Orders as follows - 1. That the applicant's actual identity and address be suppressed throughout the hearing of this Notice of Motion and also throughout the trial for unfair dismissal commenced by the applicant. 2. That a pseudonym be substituted for the applicant's actual identity. At the hearing of this matter Ms C Serpell of the ACTU on behalf of the applicant indicated that an extension of the wording of the orders was sought to include the exclusion of any person present in court for the purpose of publishing or reporting the case, and that the matter not be listed except under the pseudonym. After hearing argument from both Ms Serpell and Mr M Tehan on behalf of the respondent I made an order that the applicant's Application for Notice of Motion be dismissed. I indicated at the time I would provide written reasons for my decision as soon as possible. As the matter has been set down for hearing on 11 and 12 December 1996 I considered it important that the parties be made aware of my decision immediately. The background to this matter was set out in an affidavit sworn by Mr. Gaitely on 2 December 1996. It was stated that in June 1996 he received a suspended sentence in the County Court at Melbourne in relation to criminal offences which he had been charged with. The outcome of that trial was reported in The Age newspaper on 27 June 1996. In the article Mr. Gaitely was identified by name. It was also reported that he resided at Carrum Downs and that he was a former Victorian Junior Weight Boxing titleholder. The publication of the article caused Mr. Gaitely's family considerable distress. Many people who did not know previously about the offences found out about them as a consequence of the matter being reported. In his affidavit Mr. Gaitely said that his mother is extremely active in her work. For over 30 years she has helped children in need of a foster mother. In particular she has helped disabled children and children with special needs. Mr. Gaitely's mother's name is listed on the Honour Roll. Her work was recognised when she was awarded the Order of Australia. According to Mr. Gaitely's affidavit, people at the place at which his mother works are not aware of his criminal matters. He is concerned that further publicity or identification of that past may have a deleterious effect on her work and tarnish the good name she has established for herself. It was explained by Ms Serpell on behalf of Mr. Gaitely that in January 1994 Mr. Gaitely was charged with four criminal offences bearing on his employment by the respondent. One of those charges was not proceeded with, one Mr Gaitely was found not guilty of, and he pleaded guilty to a charge of burglary and a charge of trafficking in amphetamines. The matter was dealt with in the County Court on the 27th June 1996 and the applicant was convicted and sentenced to terms of imprisonment of nine months for each offence. The sentence was wholly suspended for a period of 2 years. On 1 July 1996 the applicant's employment was terminated by the respondent. The applicant's affidavit stated that there were only two entries in the Telecom white pages under the name "Gaitely". One is his and one belongs to his parents. It was said in the affidavit that the applicant's family had been largely deprived of their privacy in relation to this matter and he did not wish to exacerbate the distress already felt by them. It was said that he was concerned that if his actual identity was disclosed in his unfair dismissal claim it will have a detrimental effect on both himself and his family, both in the social and community sense as well as in the sense of his future employment. In particular Mr. Gaitely was concerned that the disclosure of his identity together with details of his employment may attract undue attention within the community in which he lives, whether that be by word of mouth or media attention, thus creating a difficult environment for him and his family to live in. It was submitted on behalf of the applicant that in addition to the potential prejudice to his mother in her employment if his name is publicised there is the potential to put the applicant in a position where he is reluctant to give evidence fully and frankly or at all, and that he may reconsider whether he proceeds with the application in this Court. Although those matters should properly have been sworn to in his affidavit I am prepared to provide my reasons as if those matters had been sworn to in the affidavit by the applicant. Section 373 of the Workplace Relations Act 1996 as amended states in sub-section 1 that the jurisdiction of the Court is to be exercised in open Court. Section 480 of the Act states "The Court may, at any time during or after the hearing of the proceeding in a 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" (emphasis added). It is not argued that it is necessary to suppress the name of the applicant for the security of the Commonwealth. It is argued that it is necessary to prevent prejudice to the administration of justice. This Court was referred to a number of decisions, both of this Court and in other jurisdictions. The question of the suppression of identity of either parties or witnesses in matters before this Court has been dealt with in a number of cases including Chambers v James Cook University of North Queensland (No. 2) 1995 61 IR 145 (Spender J.); Rimmer v Ormond College Council 1995 64 IR 39 (Marshall J); M v Australia National University Moore J unreported decision 20 August 1996; Brooke & ALHMU v Coppin Cafe Pty Ltd Murphy JR unreported 16 October 1996 and Phillipa v Carmel Ritter JR unreported IRCA decision no. 433 of 1996 10 September 1996. In Chambers v James Cook University (No. 2) Spender J sets out a detailed consideration of the principles to be applied in cases of this nature. They involve the weighing up of the possible prejudice to the administration of justice in refusing to make a suppression order on the one side and the principle of open justice on the other side. In this case I am not satisfied, on the basis of the principles set out in cases such as Chambers v James Cooks University of North Queensland (No 2) that it is necessary to the administration of justice to make a suppression order. Factors which have particularly influenced me in arriving at this conclusion are that the matter has already been through proceedings in the open courts in the criminal jurisdiction, the possibility of Mr. Gaitely's mother's job being affected being in my view extremely remote, that the most likely effect of any further publication will simply be embarrassment to Mr. Gaitely and his family, and that Mr Gaitely's assertion that he may be reluctant to give full and frank evidence in these proceedings must be seen in light of the fact that he has pleaded guilty to the charges in the criminal courts. It follows that the order of the Court be that the applicant's Application on Notice of Motion be dismissed. I certify that this and the preceding five (5) pages are a true copy of the reasons for judgment of Judicial Registrar Boon. Associate: KAREN HALSE Dated: 6 December 1996 Applicant's Representative: Ms C Serpell of the ACTU Solicitors for the Respondent: Minter Ellison Counsel for the Respondent: Mr M Tehan Date of Hearing: 6 December 1996 Date of Judgment: 6 December 1996