Case: Johnston v Cameron [2002] FCAFC 251 ; (2002) 124 FCR 160
Outcome: cited
At 444-445, at [36] Merkel J went on to say: 'A different situation might arise, for example, if the embarrassment or damage that publicity might occasion is such that it would prevent or deter a person from prosecuting or defending a proceeding in the court, or "if there was a real risk as opposed to a remote possibility that this would occur": see Johnston v Cameron [2002] FCAFC 251 ; (2002) 124 FCR 160 at 180. If that situation arises it can be weighed in the discretionary balance that is to be struck between the public interest of open justice and preventing prejudice to the administration of justice. However, that situation has not arisen in the present matter.' 24 The fact, therefore, that a failure to make a suppression order may cause severe embarrassment to, or damage the reputation of, a party or potential party to litigation may be factors to take into account in balancing the public interest in open justice against the need to prevent prejudice to the administration of justice. However, the weight that will be accorded to these factors will depend very much on the circumstances of each case. There is no evidence in this case that the applicant would, in the absence of a suppression order being made, be prevented or deterred from continuing this proceeding. Nor is there evidence that there is a real risk that this may occur. It follows that embarrassment and potential damage to the reputation of the applicant, standing alone, will not satisfy the requirements of s 50 of the Act to justify the making of a suppression order. These principles apply whether the hearing is final or interlocutory. 25 Further, in this case, by invoking the jurisdiction of this Court, the applicant has obtained the benefit of an interlocutory injunction. The risk that it would become public knowledge that there were embarrassing disciplinary allegations made against him by the University did not deter the applicant from commencing this proceeding and applying for interlocutory injunctive relief. 26 It follows that the order made on 27 March 2006 suppressing the publication of the name of the applicant until further order should be discharged. I also discharge the order of 24 March 2006 substituting the name of the applicant in this proceeding with the letter 'Y'. 27 I deal next with the question of whether the suppression order in relation to the names of the two complainants should be discharged. As mentioned above, the complainants are not deponents in this proceeding. However, the statements which they have made in the form of affidavits are the basis on which disciplinary charges have been brought against the applicant by the University. The names of the complainants also appear in the body of the applicant's affidavit of 17 March 2006 and in several of the letters comprising exhibits to the affidavit, including a crucial letter of 2 March 2006 from the University. This letter was the subject of considerable debate by counsel at the hearing of the application for the interlocutory injunction. Further, as mentioned, the names of the complainants were mentioned by counsel in open court during that hearing. 28 The University submitted that the order suppressing publication of the names of the two complainants should be continued. The University relied on the affidavit of 24 March 2006 of Mr Robert Bruce Farrelly, the Director of Human Resources at the University. Mr Farrrelly deposed that during August 2005 to November 2005, following complaints, which included complaints about sexual harassment, from members of staff in the relevant School, interviews were conducted by Ms Beverley Hill with members of staff from that School, as part of an inquiry by the University. Ms Hill was, at the material time, an employee of the University, with the title of Manager, of Equity and Diversity, reporting to Mr Farrelly. These interviews were conducted on the basis of the assurances by Ms Hill, on behalf of the University, that the names of interviewees would not be disclosed outside of the disciplinary processes of the University which were to be conducted confidentially and in private. It was those interviews which ultimately led to the complainants making the affidavits of 14 December 2005. Ms Hill subsequently prepared a report dated 7 November 2005 which contained her findings. An edited version of that report is also an exhibit to the applicant's affidavit of 17 March 2006. 29 Mr Farrelly also deposed that as Director of Human Resources, he was concerned that unless confidentiality was maintained, members of staff who make complaints of sexual harassment, will be fearful of suffering reprisals, shame and humiliation. He also said that if the University was not able to maintain confidentiality, the University would not be able to address matters that arose from Ms Hill's inquiry or generally take steps to address misconduct in the workplace and ensure a safe working environment. 33 Counsel for the newspapers submitted that the Court was not bound to give effect to private arrangements in relation to confidentiality in determining whether to make a suppression order under s 50 of the Act. Counsel referred to Johnston v Cameron [2002] FCAFC 251 ; (2002) 124 FCR 160 as an instance where the Court had refused to make a suppression order in respect of information before a union inquiry, notwithstanding that there was evidence that the information was being treated as confidential by union officials investigating allegations of sexual assault against a prominent union official. Relying further on Johnston , counsel also submitted that there was nothing inherently confidential about the names of the complainants nor the descriptions of their dealings with the applicant. 34 Counsel also submitted that whether a suppression order was necessary to prevent prejudice to the due administration of justice should be assessed by reference to whether the exercise of judicial power before this Court would be prejudiced, and not whether proceedings before some other institution may be prejudiced.