mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Coco v The Queen (1994) 179 CLR 425
Outcome: followed
The right of any suitor to approach a court of justice is a fundamental right in a free society. The right is protected by the power of the court to commit persons who interfere with that right for contempt. In Coco v The Queen (1994) 179 CLR 425 at 436 Mason CJ, Brennan, Gaudron and McHugh JJ said: 'In Raymond v Honey Lord Bridge of Harwich stated that ([1983] 1 AC 1 at 14) a citizen's right to unimpeded access to the courts can only be taken away by express enactment.' 16 This court has proceedings initiated in it either by the filing of either an application and affidavit or an application and a statement of claim. The rules of the court have been devised in a way that ensures that its processes are transparent. Where it is necessary to prevent persons knowing of the bases upon which the court has had its jurisdiction invoked, O 46 r 6(1) enables a judge to decide that material is truly confidential and ought not otherwise to be made available.
Case: Dickason v Dickason [1913] HCA 77 ; (1913) 17 CLR 50
Outcome: applied
Those exceptions, as identified by his Lordship, have been accepted by courts in Australia ever since, see Dickason v Dickason [1913] HCA 77 ; (1913) 17 CLR 50 at 51, where Barton ACJ for the High Court of Australia said: '... there is no inherent power in a Court of justice to exclude the public, inasmuch as one of the normal attributes of a Court is publicity, that is, the admission of the public to attend the proceedings. Power to exclude may be conferred expressly by law but there is no law which empowers us to proceed otherwise than with the ordinary publicity of a Court of justice. On the contrary, secs. 15 and 16 of the Judiciary Act show clearly an intention on the part of the legislature that the jurisdiction of this Court should be publicly exercised. Order 46 rule 6 provides relevantly that any member of the public: '... may search in a registry for, and inspect, a document in proceedings that is specified in subrule (2), unless the Court or a Judge has ordered that the document is confidential.' 10 Those documents include an application and a pleading or particulars of a pleading. Yesterday Mr Bannon SC for Nine Network agreed that there was nothing in the application in this matter which could possibly be confidential and I ordered that it be made available immediately. 11 That was an important concession because until then it had been the desire of the parties to the proceedings to conceal material that could not possibly be the subject of a claim for confidentiality. Where the rule has provided that documents must be in the opinion of the court or a judge confidential I am of the opinion that that imports confidentiality of the nature to which s 50 of the Federal Court of Australia Act 1976 (Cth) ('the Act') refers. Section 50 provides that: 'The Court may, at any time during or after the hearing of a proceeding in the 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.'
Case: D'Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12 ; (2005) 79 ALJR 755
Outcome: applied
The importance of the exercise of judicial power with those consequences was explained by Gleeson CJ, Gummow Hayne and Hayden JJ in D'Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12 ; (2005) 79 ALJR 755 at 761 [31] - [33] . Their Honours observed [32] that: 'Judicial power as an element of the government of society and its aims are wider than and more important that the concerns of the particular parties to the controversy in question, be they private persons, corporations, polities or the community as personified in the Crown or represented by a Director of Public Prosecutions. No doubt the immediate parties to a controversy are very interested in the way in which it is resolved. But the community at large has a vital interest in the final quelling that controversy. That is why reference to the 'judicial branch of government' is more than a mere collocation of words designed to instil respect for the judiciary. It reflects a fundamental observation about the way in which this society is governed.' 25 The controversy which Mr Llewellyn brought to this court was required to be pleaded. It was. It may or may not have been quelled. I have been informed that it has been but no orders have been filed in the court bringing these proceedings to an end. So far as the court is concerned they are current and pending. The allegations in these proceedings are matters which I have been informed from the bar table have attracted a fair degree of public interest and have involved litigation brought by Nine Network against Mr Llewellyn on his employment contract in the Supreme Court of New South Wales.
Case: Home Office v Harmon [1983] 1 AC 280
Outcome: referred to
Reliance was then placed on a principle in the decision of the House of Lords in Home Office v Harmon [1983] 1 AC 280 in which, over a very powerful dissenting speech by Lord Scarman with whom Lord Simon of Glaisdale agreed, a bare majority of the House of Lords came to a view which may not necessarily represent the law in this country as to the availability of documents which have been tendered and relied in open court at a time after the hearing had finished. I need not refer further to that question. 21 Significantly, the rules of the Supreme Court of New South Wales are not the same as those in O 46 r 6. That court had a rule in SCR Part 65 rule 7 , which provided that: 'A person may not search in a registry for or inspect any document or thing in the proceedings without the leave of the Court.' 22 This court has clearly taken a very different approach in its rule and has not left it to the parties to keep confidential that which has at least been relied on as the process by which proceedings in this court are initiated. Parties know that when they file in this court the rules provide that applications and pleadings are, unless the court orders they be kept confidential, available for inspection. If there is a reason at the time of the filing of documents that any such document, ought not be available for inspection, O 46 r 6(1) provides a means for it to be kept confidential. The need for that exceptional course ought to be established on evidence at the time it is filed. Of course there may be cases of urgency or necessity where it is not always possible to do so and the court is able, pursuant to its inherent powers and the powers under s 50 of the Act, to accommodate such situations. No such situation was made apparent in this case. 23 In my view the approach taken by Santow J and Barrett J is fundamentally erroneous. It misunderstands the function of fair reports of proceedings and the availability to all persons of the right to be able to make fair reports of proceedings that have been initiated in courts. Ordinary members of the public are well aware of the difference between allegations made in courts and findings made by courts. People who make allegations or cause the processes of courts to be invoked do so in the circumstance that they are asking for the judicial power of the state or, here, the Commonwealth to be applied to the resolution of their dispute.
Case: John Fairfax &amp; Sons Pty Ltd v McRae [1955] HCA 12 ; (1955) 93 CLR 351
Outcome: cited
That power appears to reflect the inherent power of every superior court and the implied power of every court to prevent abuse of its own processes and to protect the administration of justice and, in the case of superior courts, to protect the administration of justice not merely in the proceedings before the court but generally: see John Fairfax &amp; Sons Pty Ltd v McRae [1955] HCA 12 ; (1955) 93 CLR 351 at 364-365.
Case: John Fairfax and Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465
Outcome: applied
In John Fairfax and Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 481 McHugh JA identified the substantial importance of the right to publish fair and accurate reports of court proceedings as a common law right the enjoyment of which fell within the common law presumption of immunity from statutory interference. That presumption is of course reinforced by the availability of the statutory defence of fair report.
Case: Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511
Outcome: referred to
The originating process and pleadings in proceedings initiated in a court of justice such as this court with rules such as O 46 r 6, are intended by the rules of the court to be available to the public. That is so that they may see what is the controversy brought to the court for resolution by it in its ordinary function as a court constituted under Chapter III of the Constitution . That function is to resolve controversies that arise under laws of the Commonwealth or under the Constitution itself and to determine finally all matters in dispute between the parties. Hence, the jurisdiction of this court to deal finally with the whole of the matter between parties even though only a part of it, and perhaps only a small part of it, involves an issue which is a 'matter' within the meaning of ss 75 and 76 of the Constitution : see Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511. 29 It was suggested by senior counsel for Nine Network yesterday that what appears on page 7 in the statement of claim was a confidential matter involving a private communication within the Nine Network companies and was only of prurient interest to those seeking to exercise their right to inspect under O 46 r 6. That was put as a substantive basis for the resistance to the right of access being afforded and a suggestion that the material was confidential within the terms of r 6(1). 30 The allegation the subject of that submission was that on or about 11 January 2006 Mr Llewellyn was directed by an agent of Nine Network to prepare a news story attacking Mr Kerry Stokes of Channel 7 in relation to a news story on Channel 7 which in turn had attacked Mr James Packer. Mr Llewellyn alleged that he refused to follow that direction. There was then another allegation that a week later he was directed by Mr Chisholm to terminate a Mr John Lyons' employment due to what was alleged to be poor performance. Mr Lyons was at that time employed in the position of an executive director of the Sunday program.
Case: Scott v Scott [1913] AC 417
Outcome: applied
Senior counsel for Nine Network submitted me that the word 'confidential' in O 46 r 6(1) could be read as being more limited than relating to the kinds of confidences which the court protects under the exceptions to the principle of open justice. Those principles were identified by Viscount Haldane, Lord Chancellor, in Scott v Scott [1913] AC 417 at 437-438. His Lordship explained that the first two of those classes dealt with cases of wardship and what, was in those days called lunacy and today may be called, mental illness. 8 The third class was where the effect of the publicity would destroy the subject matter of the proceedings. His Lordship said that class stood on a different footing: 'There it may well be that justice could not be done at all if it had to be done in public. As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration.'
Case: Andersen v Umbakumba Community Council (1994) 56 IR 102
Outcome: cited
The meaning of the expression "competent administrative authorities" in the Termination of Employment Convention thus falls for consideration. In Andersen v Umbakumba Community Council (1994) 56 IR 102 at 104-105, von Doussa J commented that "[t]he rules which govern a national court when construing an International Convention which has been enacted into Australian domestic law are more liberal than the traditional canons of construction of the English common law". His Honour's comment was cited with approval in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 (' Mohazab ') at 203. The Vienna Convention on the Law of Treaties 1969 (done at Vienna on 23 May 1969) 1155 UNTS 331 (entered into force on 27 January 1980) ('the Vienna Convention') provides relevant interpretative principles: see AB v Registrar of Births, Deaths and Marriages [2007] FCAFC 140 (' AB v Registrar ') at [80] per Kenny J; Povey v Qantas Airwas Ltd (2005) 2223 CLR 189 at 202 per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ; and Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 at 231 per Brennan CJ, 240 per Dawson J, 251-6 per McHugh J and 277 per Gummow J. Article 31(1) of the Vienna Convention requires that the Termination of Employment Convention be interpreted "in good faith in accordance with the ordinary meaning to be given to [its] terms ... in their context and in the light of its object and purpose". Context, for this purpose, includes the text and the preamble. State practice may be relevant: see Vienna Convention, art 31(3)(b). The Vienna Convention, in art 32, permits recourse to the preparatory work of the Termination of Employment Convention and the circumstances of its conclusion.
Case: Povey v Qantas Airwas Ltd (2005) 2223 CLR 189
Outcome: cited
The meaning of the expression "competent administrative authorities" in the Termination of Employment Convention thus falls for consideration. In Andersen v Umbakumba Community Council (1994) 56 IR 102 at 104-105, von Doussa J commented that "[t]he rules which govern a national court when construing an International Convention which has been enacted into Australian domestic law are more liberal than the traditional canons of construction of the English common law". His Honour's comment was cited with approval in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 (' Mohazab ') at 203. The Vienna Convention on the Law of Treaties 1969 (done at Vienna on 23 May 1969) 1155 UNTS 331 (entered into force on 27 January 1980) ('the Vienna Convention') provides relevant interpretative principles: see AB v Registrar of Births, Deaths and Marriages [2007] FCAFC 140 (' AB v Registrar ') at [80] per Kenny J; Povey v Qantas Airwas Ltd (2005) 2223 CLR 189 at 202 per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ; and Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 at 231 per Brennan CJ, 240 per Dawson J, 251-6 per McHugh J and 277 per Gummow J. Article 31(1) of the Vienna Convention requires that the Termination of Employment Convention be interpreted "in good faith in accordance with the ordinary meaning to be given to [its] terms ... in their context and in the light of its object and purpose". Context, for this purpose, includes the text and the preamble. State practice may be relevant: see Vienna Convention, art 31(3)(b). The Vienna Convention, in art 32, permits recourse to the preparatory work of the Termination of Employment Convention and the circumstances of its conclusion.
Case: Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225
Outcome: cited
The meaning of the expression "competent administrative authorities" in the Termination of Employment Convention thus falls for consideration. In Andersen v Umbakumba Community Council (1994) 56 IR 102 at 104-105, von Doussa J commented that "[t]he rules which govern a national court when construing an International Convention which has been enacted into Australian domestic law are more liberal than the traditional canons of construction of the English common law". His Honour's comment was cited with approval in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 (' Mohazab ') at 203. The Vienna Convention on the Law of Treaties 1969 (done at Vienna on 23 May 1969) 1155 UNTS 331 (entered into force on 27 January 1980) ('the Vienna Convention') provides relevant interpretative principles: see AB v Registrar of Births, Deaths and Marriages [2007] FCAFC 140 (' AB v Registrar ') at [80] per Kenny J; Povey v Qantas Airwas Ltd (2005) 2223 CLR 189 at 202 per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ; and Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 at 231 per Brennan CJ, 240 per Dawson J, 251-6 per McHugh J and 277 per Gummow J. Article 31(1) of the Vienna Convention requires that the Termination of Employment Convention be interpreted "in good faith in accordance with the ordinary meaning to be given to [its] terms ... in their context and in the light of its object and purpose". Context, for this purpose, includes the text and the preamble. State practice may be relevant: see Vienna Convention, art 31(3)(b). The Vienna Convention, in art 32, permits recourse to the preparatory work of the Termination of Employment Convention and the circumstances of its conclusion.
Case: He v Lewin [2004] FCAFC 161 ; (2004) 137 FCR 266
Outcome: discussed
To date, s 659(2)(e) has received limited judicial attention and the expression, "competent administrative authority" even less. In He v Lewin [2004] FCAFC 161 ; (2004) 137 FCR 266 (' He ') at 280, a Full Court held that s 170CK(2)(e) (a predecessor of s 659(2)(e)) was "directed to the making of complaints to outside authorities, either by way of instituting proceedings against the employer, or by way of making allegations to officials who are empowered to investigate such allegations" (emphasis added). Thus, the ground could not be established by the making of complaints directly to an employer. Zhang followed He on this point: see Zhang at 351 per Lander J, with whom Spender and Kenny JJ agreed.
Case: Leicester v Western Desert Puntukurnuparna Aboriginal Corporation (unreported, IRCA 16/97, 10 February 1997)
Outcome: referred to
As already stated, absent authority on the point, the natural meaning of the expression "competent administrative authority" is a body with legal capacity to manage, deal with, or suitably address an employee's allegation against his or her employer, in some way. In Leicester v Western Desert Puntukurnuparna Aboriginal Corporation (unreported, IRCA 16/97, 10 February 1997) Ritter JR reached much the same conclusion: see also Weier v Modern Alarms [2007] AIRC 432 at [59] per Senior Deputy President Richards. Thus, the Occupational Health and Safety Officer at the Victorian Trades Hall Council had no relevant competence to deal with the email communication made by Ms Zhang and was not a "competent administrative authority": see Zhang at 350; see also Crowley v Parker Hannifin (Australia) Pty Ltd (2006) 154 IR 88 at 92 per Marshall J.
Case: Weier v Modern Alarms [2007] AIRC 432
Outcome: referred to
As already stated, absent authority on the point, the natural meaning of the expression "competent administrative authority" is a body with legal capacity to manage, deal with, or suitably address an employee's allegation against his or her employer, in some way. In Leicester v Western Desert Puntukurnuparna Aboriginal Corporation (unreported, IRCA 16/97, 10 February 1997) Ritter JR reached much the same conclusion: see also Weier v Modern Alarms [2007] AIRC 432 at [59] per Senior Deputy President Richards. Thus, the Occupational Health and Safety Officer at the Victorian Trades Hall Council had no relevant competence to deal with the email communication made by Ms Zhang and was not a "competent administrative authority": see Zhang at 350; see also Crowley v Parker Hannifin (Australia) Pty Ltd (2006) 154 IR 88 at 92 per Marshall J.
Case: Crowley v Parker Hannifin (Australia) Pty Ltd (2006) 154 IR 88
Outcome: cited
As already stated, absent authority on the point, the natural meaning of the expression "competent administrative authority" is a body with legal capacity to manage, deal with, or suitably address an employee's allegation against his or her employer, in some way. In Leicester v Western Desert Puntukurnuparna Aboriginal Corporation (unreported, IRCA 16/97, 10 February 1997) Ritter JR reached much the same conclusion: see also Weier v Modern Alarms [2007] AIRC 432 at [59] per Senior Deputy President Richards. Thus, the Occupational Health and Safety Officer at the Victorian Trades Hall Council had no relevant competence to deal with the email communication made by Ms Zhang and was not a "competent administrative authority": see Zhang at 350; see also Crowley v Parker Hannifin (Australia) Pty Ltd (2006) 154 IR 88 at 92 per Marshall J. 135 The question arises as to what orders should be made. Mr Claveria seeks an order for reinstatement pursuant to s 665(1)(b), which the respondent opposes. The respondent argued that compensation in lieu of reinstatement was the more appropriate remedy. The respondent submitted that the Court should be satisfied that Mr Claveria "may not have worked for long, even if he had not been terminated on 24 January 2007", because of : a. the nature of his work, being in automotive glass; b. the reducing number of contracts ... c. the complaints about performance raised against the Applicant; and d. the assertion that these had been raised for a lengthy period. 136 There was little evidence led at the hearing in support of the first two factors. There was some evidence that some redundancies were foreshadowed and that Mr Claveria was likely to be amongst them. It was, however, by no means clear from the evidence that redundancies were in any sense inevitable in the near future. At most the evidence showed that it was possible that, if reinstated, Mr Claveria might be made redundant at some time in the near or distant future. If this were to happen, he would be subject to the terms on which redundancies were made. This is not a significant factor against reinstatement. 137 The principal factors relied on in opposition to reinstatement were Mr Claveria's work performance and his relationship with Mr Dunstan. Mr Claveria had been given a final warning by Mr Dunstan's predecessor in July 2006. There was, however, evidence that, when Mr Dunstan began, he had no difficulty with Mr Claveria and that Mr Dunstan told him, in August 2006, "we're going to make this a clean slate". Further, there was no reliable evidence that Mr Claveria's work performance was poor. Mr Dunstan conceded that there was no reliable evidence about the quality and quantity of his output, and that he had never observed Mr Claveria's work.
Case: Jennings v Salvation Army (2003) 128 IR 366
Outcome: cited
In conformity with this too, it has been held that an application for compensation under the no-fault compensation scheme established by the Accident Compensation Act 1985 (Vic) does not fall within s 659(2)(e); rather it is merely a claim for compensation: see Jennings v Salvation Army (2003) 128 IR 366 at 370-371 per Marshall J approved in Zhang at 352; see also Zhang v The Royal Australian Chemical Institute Inc [2004] FCA 1392 at [15] per Finkelstein J.