Case: Herald &amp; Weekly Times Ltd v Williams [2003] FCAFC 217 ; (2003) 130 FCR 435
Outcome: applied
The question of whether damage and embarrassment and considerations of confidentiality and privacy could found the basis for the making of a suppression order was considered recently by the Full Court in the case of Herald &amp; Weekly Times Ltd v Williams [2003] FCAFC 217 ; (2003) 130 FCR 435 ('Williams') 20 In that case, Mr Williams, who was a well-known football player, commenced proceedings in the Administrative Appeals Tribunal ('the AAT') challenging an amended assessment of his taxation return. At an interlocutory hearing, the AAT made an order suppressing the publication of Mr Williams' name. Mr Williams appealed to this Court against an interlocutory decision of the AAT in relation to whether the Australian Taxation Office had provided sufficient particulars of its claims in support of the amended assessment. The primary judge made a suppression order suppressing Mr Williams' name in order to give 'practical effect' to the suppression order of the AAT. There was an appeal against that decision and the Full Court allowed the appeal. 21 In the Full Court, Merkel J (with whom Finn and Stone JJ agreed) drew a distinction between the role of the AAT as a 'layer' of administrative decision-making in the Commonwealth and the exercise by the Court of the judicial power of the Commonwealth. At 443, at [31] Merkel J said: '...before exercising the power conferred by s 50 of the FCA Act the primary judge was required to determine whether it appears that the order sought was "necessary in order to prevent prejudice to the administration of justice". Section 50 is concerned with prejudice in respect of the exercise by the court of the judicial power of the Commonwealth, rather than prejudice in respect of the exercise by the AAT of the administrative power of the Commonwealth. Maintaining or, as the primary judge put it, "giving practical effect" to Williams' statutory entitlements to privacy and confidentiality in relation to the application for administrative review in the AAT may, or may not, be necessary in order to prevent prejudice to the exercise by the a AAT of its powers but cannot, standing alone, be necessary in order to prevent prejudice to the exercise by the court of its judicial powers.' 31 Senior counsel for the University submitted that the position in this case was distinguishable from that in Williams in that the privacy and confidentiality regime in Williams was based on statute and the orders of the AAT. However, in this case the information was given by the complainants pursuant to a confidentiality undertaking given by the University, which was of such a nature as would attract the protection of equity. This was, submitted senior counsel, a sufficient basis on which to make a suppression order under s 50 of the Act because the proper administration of justice required the preservation of confidentiality undertakings. Senior counsel also submitted that the case of Australian Broadcasting Commission v Parish (1980) 43 FLR 129 (' Parish' ) was an authority which supported this proposition. 35 In Williams , the Full Court found that the primary judge was in error in making a suppression order under s 50 of the Act on the grounds of seeking to give 'practical effect' to the privacy and confidentiality entitlements that Mr Williams was entitled to in the AAT proceedings, without assessing whether it was necessary to suppress the publication of Mr Williams' name to prevent prejudice to the administration of justice in this Court. 36 I do not accept the submission of senior counsel for the University that the Williams case is distinguishable from this case, in that the respective confidentiality and privacy regimes were founded on different bases. The gravamen of the decision in Williams was not whether the basis of the existing confidentiality regime was to be found in statute or common law or equity, but whether it was necessary to maintain that regime in order to prevent prejudice to the administration of justice in this Court as opposed to the forum which was the source of the existing confidentiality regime. In essence, in seeking to prevent publication of the names of the complainants, the University seeks to perpetuate in this Court the privacy and confidentiality regime which prevails as part of its process for investigating serious misconduct under the processes contemplated by the Sexual Harassment Policy and the certified agreement. This emerges from the evidence of Mr Farrelly who refers to the privacy and confidentiality provisions of the Sexual Harassment Policy and to the potential difficulty in the implementation of that policy if the confidentiality as to the names of complainants generally is not preserved. In my view, the University is asking this Court to give effect to the confidentiality and privacy regime under its Sexual Harassment Policy and the certified agreement, in the same way as Mr Williams asked the primary judge to give effect to his confidentiality and privacy entitlements before the AAT. There is, therefore, in my view, no material distinction between the approach advanced by the University and the approach taken by the primary judge in Williams which was identified by the Full Court as erroneous. I am bound by the decision in Williams . 39 As mentioned, Mr Farrelly has deposed that he is concerned that if the names of complainants under the University's Sexual Harassment Policy are not kept confidential this will have adverse consequences for the enforcement of the University's Sexual Harassment Policy in the workplace. This is a legitimate concern. However, because that concern relates to the conduct of disciplinary proceedings in an institution other than this Court and does not relate to the exercise of judicial power in this Court, it does not fall within the ambit of the factors identified by the Full Court in Williams as being factors to which regard may be legitimately be had in determining whether to make a suppression order under s 50 of the Act. 40 As to the wider argument by senior counsel for the University that the failure to suppress the names of the complainants may lead to persons in general being less likely to report sexual harassment, this is a variant of the argument founded on the potential for embarrassment of a party or a witness by the disclosure of that person's name. As mentioned, the extent to which embarrassment and distress may lead to the making of a suppression order under s 50 of the Act, in any proceeding, must be assessed by reference to the application of the principles in Williams , to that proceeding. In other words, the question of whether to make a suppression order under s 50 of the Act is not to be assessed by reference to broad public policy considerations, but by reference to the extent to which, on the evidence, the administration of justice may be prejudiced in any specific proceeding by not making the order. As stated above, it is established on the authorities that embarrassment, standing alone, is not sufficient for the making of an order under s 50 of the Act. 41 As mentioned, the names of the complainants appeared in the body of the applicant's affidavit and in documents, including a crucial letter of 2 March 2006, which were in evidence, and to which reference was made, at the hearing of the interlocutory injunction. Further, the names of the complainants were mentioned in open court during the hearing. Applying the principles in Williams , there is no evidence before me which permits me to conclude that it is necessary to suppress the publication of the names of the complainants in order to prevent prejudice to the administration of justice within the meaning of s 50 of the Act. I would, therefore, discharge the order which I made on 27 March 2006 suppressing the publication of the names of the two complainants. 42 I turn now to the application by counsel for the newspapers that the newspapers be permitted to inspect the affidavit of the applicant dated 17 March 2006 and all of its exhibits. This application if granted would permit the newspapers to inspect the complainants' affidavits. 43 Counsel for the newspapers argued that the newspapers should be given access to the whole of the affidavit of the applicant of 17 March 2006, including the complainants' affidavits, because this would assist the newspapers in being better able to understand and report upon the proceeding. Counsel also relied upon the public interest in open justice. Senior counsel for the University opposed the application by the newspapers on the grounds that the complainants' affidavits were made in circumstances of confidentiality.