Johnston v Cameron [2002] FCAFC 251 (20 August 2002)

Last Updated: 21 August 2002

FEDERAL COURT OF AUSTRALIA

Johnston v Cameron [2002] FCAFC 251

EVIDENCE - claim for confidentiality - application pursuant to s 209 of Workplace Relations Act 1996 (Cth) - order sought under s 50 of Federal Court of Australia Act 1976 (Cth) prohibiting publication of evidence - principle of open justice - public interest - prior disclosure of evidence - evidence affecting reputation of elected union official - general nature of evidence widely known - publication likely to cause embarrassment to applicant and family

PRACTICE AND PROCEDURE - application for leave to appeal - whether leave to appeal should be granted - whether trial judge erred in the exercise of discretion - whether decision of primary judge is attended with sufficient doubt to warrant reconsideration by Full Court -whether substantial injustice would result if leave were refused and decision was erroneous

Federal Court Rules O 52 r10(2)(b)

Federal Court of Australia Act 1976 (Cth) ss 17, 17(1), 17(4), 24(1A) and 50

Workplace Relations Act 1996 (Cth) s 209 and 209(4)

Johnston v Cameron [2002] FCA 948 considered

Niemann v Electronic Industries Ltd [1978] VR 431 cited

Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 (FC) referred to

Multigroup Distribution Services Pty Limited v TNT Australia Pty Limited [2001] FCA 1721 (FC) cited

Minogue v Williams [2000] FCA 125 cited

House v the King [1936] HCA 40; (1936) 55 CLR 499 cited

Australian Broadcasting Commission v Parish [1980] FCA 33; (1980) 29 ALR 228 considered

Versace v Monte [2001] FCA 1565 considered

G v The Queen (1984) 35 SASR 349 referred to

The Queen v Hermes; Ex Parte V [1963] SASR 81 referred to

Scott v Scott [1913] AC 417 - discussed

CRAIG JOHNSTON v DOUG CAMERON (and others according to the schedule of respondents)

V 455 OF 2002

BRANSON, TAMBERLIN & FINKELSTEIN JJ

20 AUGUST 2002

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 455 OF 2002
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	CRAIG JOHNSTON APPLICANT
AND:	DOUG CAMERON (and others according to the schedule of respondents) RESPONDENTS

JUDGES:	BRANSON, TAMBERLIN & FINKELSTEIN JJ
DATE:	20 AUGUST 2002
PLACE:	MELBOURNE

THE COURT ORDERS THAT:

1. The applicant be allowed until 2 August 2002 to file and serve a notice of motion seeking leave to appeal against the interlocutory judgment of Weinberg J dated 22 July 2002.

2. The applicant be granted leave to appeal from the interlocutory judgment of Weinberg J dated 22 July 2002.

3. The appeal from the interlocutory judgment of Weinberg J dated 22 July 2002 be dismissed.

4. The order of the Full Court pronounced on 5 August 2002 that order 1 of the orders made by Marshall J dated 17 July 2002 remain in force until further order be of no further force or effect.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 455 OF 2002
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	CRAIG JOHNSTON APPLICANT
AND:	DOUG CAMERON (and others according to the schedule of respondents) RESPONDENTS

JUDGES:	BRANSON, TAMBERLIN & FINKELSTEIN JJ
DATE:	20 AUGUST 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

BRANSON J

INTRODUCTION

1 The applicant has moved the Court pursuant to an amended notice of motion filed 2 August 2002 for leave to appeal from an interlocutory judgment of Weinberg J dated 22 July 2002 whereby his Honour dismissed the applicant's amended notice of motion dated 19 July 2002. The respondents have consented to an order being made pursuant to O 52 r10(2)(b) of the Federal Court Rules allowing the applicant until 2 August 2002 to file and serve his notice of motion. By his amended notice of motion dated 19 July 2002 the applicant had sought an order pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act") preventing the publication of certain evidence adduced in the proceeding before Weinberg J and the submissions of the parties in the proceeding to the extent that they referred to that evidence. The application for leave to appeal and argument as to the merits of the appeal should leave be granted were heard together.

2 The substantive proceeding before the primary judge is an application for orders under s 209 of the Workplace Relations Act 1996 (Cth) ("the WR Act"). The applicant has sought orders requiring the respondents to treat as null and void:

(a) certain charges laid by the twenty-third respondent against the applicant under rule 13 of the rules of the Union; and

(b) certain resolutions of the National Council of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ("the Union") concerning the procedure to be adopted in relation to the hearing and determination of those charges.

The applicant has also sought an order restraining the respondent from taking any further steps to investigate, hear or determine the charges laid against the applicant.

3 The learned primary judge has heard and determined an application for interim orders under s 209(4) of the WR Act. The order that the applicant sought pursuant to s 50 of the Federal Court Act was intended to prevent publication of evidence or submissions that would identify the charges laid by the twenty-third respondent against the applicant, the allegations upon which those charges were based and the identity of the female union employee claimed to have made those allegations. His Honour's reasons for judgment dated 30 July 2002 (Johnston v Cameron [2002] FCA 948) include not only his Honour's reasons for granting to the applicant certain limited interim relief but also his Honour's reasons for dismissing the notice of motion whereby the applicant sought an order under s 50 of the Federal Court Act. His Honour indicated a willingness to make an order that there be no publication of the name of the female union employee claimed to have made allegations against the applicant. It is not clear that his Honour formally made such an order but I assume that the respondents, or one or more of them, will invite his Honour to do so. Hereafter I shall refer to that union employee as "Ms X".

4 His Honour extended an earlier interim order made by Marshall J to protect the applicant's position pending an appeal to the Full Court. This Court has further extended that order pending the determination of this application for leave to appeal from the judgment of Weinberg J.

FEDERAL COURT OF AUSTRALIA ACT 1976 (CTH)

5 Section 50 of the Federal Court Act provides:

"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."

6 For completeness the terms of s 17(1) and (4) of the Federal Court Act should also be noted. Those subsections provide:

"(1) Except where, as authorized by this section or another law of the Commonwealth, the jurisdiction of the Court is exercised by a Judge sitting in Chambers, the jurisdiction of the Court shall be exercised in open court.

...

(4) The Court may order the exclusion of the public or of persons specified by the Court from a sitting of the Court where the Court is satisfied that the presence of the public or of those persons, as the case may be, would be contrary to the interests of justice."

LEAVE TO APPEAL

7 Section 24(1A) of the Federal Court Act, which prevents the bringing of an appeal from an interlocutory judgment to the Court unless the Court or a judge has given leave to appeal, reveals a legislative intention to restrict the bringing of appeals from interlocutory judgments. The Court or a judge has an unfettered discretion to grant leave to appeal from an interlocutory judgment. Ordinarily that discretion will be exercised having regard to the principles considered in Niemann v Electronic Industries Ltd [1978] VR 431 (see Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 (FC) ("Decor Corporation v Dart Industries"); Multigroup Distribution Services Pty Limited v TNT Australia Pty Limited [2001] FCA 1721 (FC)). Those principles include whether, in all of the circumstances, the decision from which the appeal is sought to be brought is attended with sufficient doubt to warrant it being reconsidered by the Full Court and additionally whether substantial injustice would result if leave were refused and the decision was erroneous.

8 This is not a case in which the exercise by the primary judge of a discretion with respect to a point of practice and procedure is sought to be challenged. Rather, his Honour's decision, if allowed to stand, will have the practical effect of determining the claim of the applicant to be entitled to an order under s 50 of the Federal Court Act. Leave to appeal is more readily granted in a case of this kind than in a case concerning practice and procedure only (Decor Corporation v Dart Industries at 400; Minogue v Williams [2000] FCA 125 at [19] (FC)).

9 The decision of the primary judge flowed from an exercise of a discretion vested in his Honour by s 50 of the Federal Court Act. Accordingly, although an appeal lies from the decision provided leave is granted, this Court would not interfere with his Honour's exercise of discretion, even if this Court would itself have arrived at the contrary decision, unless his Honour made an error of the kind identified in House v the King [1936] HCA 40; (1936) 55 CLR 499 at 504-505 (Australian Broadcasting Commission v Parish [1980] FCA 33; (1980) 29 ALR 228 per Bowen CJ at 232).

REASONS OF PRIMARY JUDGE

10 Weinberg J observed at [65]:

"The fundamental rule is that proceedings take place in open court: Scott v Scott [1913] AC 417. The fact that the evidence to be led is of an unsavoury character is insufficient of itself to warrant hearing that evidence in camera. It is also insufficient to order that the publication of that evidence be suppressed. To justify an order that evidence be had in camera:

`... it must be shown that the paramount object of securing that justice is done would really be rendered doubtful of attainment if the order were not made' - per Viscount Haldane LC at 439."

11 His Honour rejected the contention advanced on behalf of the applicant that the decision of the Full Court of this Court in Australian Broadcasting Commission v Parish established that s 50 of the Federal Court Act did not accord precisely with the common law and that the section provided a somewhat expanded basis for the making of suppression orders in this Court.

12 Weinberg J proceeded on the basis that he was required to balance the particular interests of the parties against the needs of open justice. His Honour at [77] -[84] observed:

"The evidence sought to be suppressed in this case is sensitive, but not intrinsically confidential in the way that it was in Parish. There are no trade secrets involved, no commercially sensitive information, and no confidential agreements. Publication of the nature of the allegation made against Mr Johnston would, no doubt, be a source of serious embarrassment to him, and to his family as well. Damage would be done to his reputation. The charges are serious and, having regard to the position that he occupies within the Union, undoubtedly would attract widespread media interest.

At the same time, the allegation made against Mr Johnston is just that, unproven and denied. He is, of course, entitled to the presumption of innocence, unless and until the charges are proved. When this matter commenced, the allegation had not been referred to the Victorian police for investigation. That is no longer the position, but there is a substantial difference between a police investigation, and a decision to lay charges. As matters stand, those charges are not supported by any evidence given by the complainant directly to this Court. She has not sworn an affidavit regarding the incident. Her statutory declaration, and the various statements which she has made, are not direct evidence before me.

The fact that Mr Johnston is entitled to be treated as innocent of these charges unless or until he is found to be guilty of them, does not mean that he is entitled to bring proceedings in this Court under a cloak of secrecy, partial or complete.

It is important to note that the allegation against Mr Johnston is by now widely known, at least within the upper echelons of the Union. It is certainly known to all of the members of the National Council. It is also known to those members of the State Council who attended the meeting on 8 July 2002, because it was disclosed to them by Mr Johnston. The evidence shows that the allegation was the subject of rumours within the Branch as far back as January 2002. As noted above, it is now known to the Victorian Police, and possibly to others.

Mr Johnston is a controversial figure with a high public profile. The evidence suggests that he has enemies both within, and outside, the Union. Even if the suppression orders made by Marshall J were continued, the proceedings before me would be held in open court. Those proceedings are likely to be well attended. There is little likelihood, in those circumstances, that the allegation made against him would remain secret.

Unlike Versace and Parish, the relief sought by Mr Johnston, whether on an interlocutory or final basis, will not be rendered nugatory, in the event that publication of the allegation against him is not prohibited. It must be remembered that Mr Johnston, in seeking relief pursuant to s 209 of the Act, wishes to have the resolutions passed by National Council on 9 July 2002 declared invalid. He seeks to have his suspension, pending the hearing of the charges against him, lifted. He also seeks to have orders made preventing National Council from hearing those charges. Finally he seeks to have orders made setting aside those resolutions which appointed Mr Oliver as Administrator.

If publicity is given to the evidence concerning the charges brought against Mr Johnston, none of these objectives will, in any way, be thwarted. In truth, his main concern, which is a legitimate concern, is his reputation. That is an important matter and, as was decided in [E v Australian Red Cross Society [1991] FCA 20; (1991) 27 FCR 310], may properly be taken into account when considering whether or not to suppress publication. However, it is by no means the only factor to be taken into account and must be weighed, in the exercise of discretion, against the strong countervailing interest in open justice.

It should also be noted that this case differs, in one important respect, from those others where suppression orders have been made. It seems to me that there is a legitimate public interest in knowing that a serious allegation of this type has been made against a senior official of a large, and powerful, Union. The members of that Union have an interest in knowing why their State Secretary has been suspended, and why an Administrator has been appointed to manage the Branch. The fact that, regrettably, there will be collateral harm to Mr Johnston before the allegation against him can be tested, is unfortunate. It does not, however, meet the test required for suppression under s 50, namely, that an order prohibiting publication of evidence is `necessary in order to prevent prejudice to the administration of justice'."

CONTENTIONS OF THE APPLICANT

13 The applicant contended that Weinberg J failed properly, or at all, to consider the importance of doing justice between the parties. He argued that his Honour, having recognised that publication of the allegations that had been made against the applicant would be a source of serious embarrassment both to the applicant and his family, should have proceeded on the basis that the embarrassment was unwarranted and constituted prejudice to the administration of justice.

14 The applicant further contended that the applicant has commenced the proceeding to protect his reputation and standing as a person holding elected office. That reputation and standing, it is argued, is at risk of being seriously damaged if the charges before the Union proceed. Consequently, it was contended, if the allegation underlying the charges was to be published, the proceeding would be rendered meaningless - thus severely compromising the administration of justice between the parties. Reliance was placed on the fact that the parties had gone to some lengths to maintain the confidentiality of the charges.

CONSIDERATION

15 The fact that charges have been laid against the applicant and that those charges are before the National Council of the Union is admitted to be well known. The fact that the applicant has been stood down from his position as the State Secretary of the Victorian Branch of the Union is also admitted to be well known. Understandably the applicant does not seek an order suppressing evidence of the above matters.

16 The applicant has given evidence before the primary judge, which he does seek to have suppressed, that in late 2001 and early January 2002 rumours were circulating in the Victorian Branch of the Union that during November 2001 the applicant had sexually assaulted Ms X, an organiser with the Union. It is not disputed, although the evidence is sought to be suppressed, that the applicant disclosed the nature of the alleged sexual assault to a meeting of the Victorian State Council held on 8 July 2002. That meeting was attended by approximately twenty-eight members of that Council. It is clear that the nature of the alleged sexual assault is also known to the members of the National Council of the Union. Their number appears to be in the order of twenty-five.

17 In addition it is not in dispute that the Hon Joseph Riordan AO has interviewed Ms X in respect of her allegations concerning the applicant and that he has also interviewed at least four other union members to whom Ms X had reported the substance of her allegations. It is acknowledged that the allegations have now been referred to the Victorian police who may be expected to conduct an investigation into them.

18 The parties acknowledged that this Court is entitled to have regard to the fact that The Australian dated 1 August 2002 published under the heading "Union calls in police over Johnston `misconduct'", amongst other things, that:

"Militant unionist Craig Johnston faces a police investigation into allegations of gross misconduct towards a female union employee.

Mr Johnston was last month stood aside on full pay from his position as the Australian Manufacturing Workers Union's Victorian secretary pending an internal union hearing into the claims."

19 In the circumstances it may be assumed that the effect of the evidence which the applicant seeks to have suppressed is known to a significant number of members of the Union. Further, the general nature of that evidence (ie that it involves allegations of gross misconduct of a sexual kind) has apparently been the subject of rumour for many months within the Victorian Branch of the Union. The rumour has been supported by an article in a national newspaper. No order of the Court will stop talk by those who have the information sought to be suppressed and speculation by interested persons who do not.

20 It is, in my view, difficult to accept that a s 50 order is necessary to protect the reputation and standing of the applicant within the Union. His reputation and standing within the Union would seem to be equally open to be damaged by rumour and innuendo concerning gross misconduct of a sexual kind towards a female employee of the Union as by the dissemination of information concerning the charges actually laid against him. Even those outside the Union who have an interest in the applicant's reputation may be assumed to know at least that which was published in The Australian; that is, relevantly, that an internal union hearing is proposed to be held into claims of gross misconduct by the applicant towards a female employee. Nonetheless, as the primary judge recognised, publication by the media of the precise nature of the allegation made against the applicant will, no doubt, be a source of embarrassment to him and his family.

21 In my view, the authorities provide little support for the making of an order of the kind sought by the applicant in the circumstances outlined above.

22 The applicant placed primary reliance on Australian Broadcasting Commission v Parish. It was recognised by the Full Court in Australian Broadcasting Commission v Parish that s 17 and s 50 of the Federal Court Act are premised on the important principle of open justice. It was further recognised by the Full Court that the extent to which the sections provide for encroachment on that principle involves issues of statutory interpretation; cases decided at common law will provide guidance but are not decisive (per Bowen CJ at 233; Franki J at 242 and 246; Deane J at 253).

23 In Australian Broadcasting Commission v Parish the Chief Justice at 234 observed:

"Open justice is the underlying assumption of s 50, not the criterion it prescribes. The section refers to preventing `prejudice to the administration of justice'. This is not a reference to the need to preserve open justice. It is, as I have already suggested, a reference to another public interest, that is, the public interest that the court should endeavour to achieve effectively the object for which it was appointed: to do justice between the parties."

Franki J also referred to "the importance of doing justice between the parties" at 244 - 245.

24 It would, I consider, be wrong to conclude that their Honours considered that the need to do justice between the parties was the only public interest intended to be advanced by s 50 of the Federal Court Act. That was the public interest which, in the circumstances of Australian Broadcasting Commission v Parish, was required to be balanced against the competing public interest of open justice. I see no reason to conclude that important public interests which transcend the interests of the parties might not in an appropriate case need to be balanced against the principle of open justice. Examples of such public interests include the desirability of protecting the interests of children, and the desirability of withholding from publication the identity of alleged targets of serious sexual assaults - in each case, whether or not they are parties to the litigation. I doubt that it is possible to make a comprehensive list of the interests which an application under s 50 might require to be evaluated.

25 It is also important to understand what the members of the Full Court in Australian Broadcasting Commission v Parish meant by "justice between the parties". That case concerned an application for an order under s 50 of the Federal Court Act relevantly to prevent publication of confidential parts of an agreement entered into between the Australian Cricket Board and three corporations, namely PBL Marketing Pty Ltd, World Series Cricket Pty Ltd and Publishing and Broadcasting Ltd. The agreement related to the promotion of cricket matches in Australia and certain commercial activities associated with those matches. The Australian Broadcasting Commission commenced a proceeding in the Court alleging, amongst other things, that the agreement was contrary to s 45 of the Trade Practices Act 1974 (Cth). Bowen CJ at 234 took the view that:

"... the applicants have made out a substantial case for the necessity of an order under s 50 to prevent prejudice to the administration of justice, ie prejudice to that other public interest of doing justice between the parties. If the [Australian Broadcasting Commission] is successful at the trial in showing the agreement is contrary to the Trade Practices Act, the agreement will fall to the ground and the question of confidentiality with it. If the ABC is unsuccessful, then the respondents ought to be able to expect to continue under an agreement which remains with its efficacy and value not destroyed or seriously damaged by the proceedings themselves."

At 235 the Chief Justice observed:

"The position appears to me to be analogous to the position in those cases where confidential information is the subject matter of the proceedings. It is in the interests of the administration of justice that the very proceedings before the court should not be permitted to destroy or seriously depreciate the value of such confidential information."

Franki J expressed similar views at 245.

26 The potential injustice between the parties which was of concern to the members of the Full Court was the injustice which would result from one party being able to destroy or undermine the value of an agreement to which the other party was a signatory by the mere initiation of proceedings, irrespective of the merit of the proceedings. The value of the agreement in that case was dependent upon the maintenance of the confidentiality of certain aspects of the agreement. That is, the potential injustice between the parties with which their Honours were concerned was an injustice flowing from the manner in which justice in the particular case was administered; ie the injustice which would flow from the applicant being able to cause substantial prejudice to a respondent merely by initiating litigation.

27 The suggested similarity between Australian Broadcasting Commission v Parish and the present case is, in my view, superficial. First, although, in my view, very limited weight ought to be accorded to this factor, it was the applicant who initiated the substantive proceeding in this case. In Australian Broadcasting Commission v Parish the respondent came before the Court unwillingly.

28 Secondly, this proceeding was initiated against a backdrop of rumours that the applicant had sexually assaulted Ms X. It has now been publicly disclosed that the police have been asked to investigate whether he in fact was guilty of gross misconduct towards a female union employee. It is not the processes of the Court that have caused the allegations against the applicant to become publicly known.

29 Thirdly, the evidence which the applicant seeks to suppress is not truly confidential or, at least, not all truly confidential. Material is not confidential in nature merely because its disclose will cause embarrassment. While the twenty-third respondent may (we do not know that he did) have trusted in the willingness and ability of the Union to treat in confidence the details of the charges which he laid against the applicant, the crucial issue in this case is not whether the charges themselves were laid in circumstances of confidence but whether the allegations behind the charges are confidential in nature. The applicant will achieve little if the charges themselves are withheld from publication but the allegations behind them are not.

30 The National Secretary of the Union has directed the members of the National Council to treat all correspondence and documentation concerning the charges laid against the applicant on a strictly confidential basis. It is not here necessary, in my view, to explore the extent of the power of the National Secretary, or the National Council of the Union, to ensure that the charges are heard and determined in secret or that the evidence called in support of the charges remains confidential. Nothing has been identified, in my view, which attracts confidentiality to the allegations themselves. Even if the allegations were originally made by Ms X in confidence, perhaps to close friends of Ms X, that confidence has now been breached to a significant extent. Full details of the allegations are known to a considerable number of members of the Union and the general nature of the allegations has been disclosed to the world at large.

31 The applicant also placed reliance on the decision of Tamberlin J in Versace v Monte [2001] FCA 1565. In that case, which concerned allegations of misleading and deceptive conduct, his Honour made an order under s 50 of the Federal Court Act protecting the confidentiality of an exhibit and portions of an affidavit read in the proceeding. In doing so Tamberlin J at [8] noted that the remedies for deceptive and misleading conduct in breach of the Trade Practices Act 1974 (Cth) are designed to protect the public interest. His Honour concluded that the relevant public interest in that case could include the public interest of financiers, suppliers, marketing distributors, advertisers, purchasers of Versace products and others who had a legitimate interest in not being misled or deceived as to the conduct or associations of the applicants. Further at [9] his Honour noted that the principal claim for relief made by the applicants was an order restraining the allegedly false and misleading conduct. Unless the confidentiality of the exhibit and the particular portion of the affidavit were protected, that claim for relief would be frustrated.

32 The present case is of a quite different character from Versace v Monte. It is accepted that the interests that the s 50 order sought in this case is intended to advance are the private interests of the applicant and not public interests. Further, although the applicant may be assumed to have been motivated to initiate a proceeding seeking orders under s 209 of the WR Act by a concern for his standing in the Union and his reputation generally, the relief sought by him is that identified in [2] above. The order which he seeks under s 50 of the Federal Court Act is not necessary to prevent his claim for relief from being frustrated.

33 So far as the applicant is concerned about his reputation as the holder of an elected union office, it would seem that the damage that it is suggested would result from the publication of the evidence sought to be suppressed would be only marginally greater, assuming it to be greater at all, than the damage that his reputation has presumably already suffered in the eyes of those minded to attach weight to mere allegations. That is, the protection which could be afforded to him by an order of the kind which he seeks is limited.

34 It is, of course, to be regretted that hurt and embarrassment is likely to be experienced by the applicant and his family if additional publicity is given to the allegations against him. That hurt and embarrassment will be particularly regrettable if, at the end of the day, the allegations are shown to be without substance. Nonetheless, a realistic assessment of the circumstances is necessary. In the case of G v The Queen (1984) 35 SASR 349 at 352 King CJ, in the context of an application for an order suppressing the name of an accused person, said:

"[i]n most cases ... it cannot be shown that the publication of the name will add very much if anything to the distress and suffering which those close to the accused will suffer from the knowledge that he has been charged and that that fact is known or will soon be known, irrespective of publication, to his friends and close acquaintances."

35 I recognise that a significance attends the laying of a police charge that does not necessarily attend the laying of a charge under the Union's rules. Nonetheless, in the circumstances of this case, it seem likely that the hurt and embarrassment which will flow from any additional publicity will be less than in a case where publicity of a hurtful or damaging kind is unheralded.

36 The applicant argued that the primary judge ought to have placed weight on the fact that none of the respondents before his Honour opposed the making of the orders sought by the applicant. The Court was not addressed on the significance, if any, of the respondents who participated in the hearing of the application to this Court opposing the grant of leave to appeal from the decision of the primary judge or of their submission that it would not have been appropriate for the primary judge to have made the order sought by the applicant.

37 Section 50 of the Federal Court Act, as is mentioned above, calls for the evaluation of competing public interests. While the attitude adopted by one party to a proceeding to an application made by another for an order under s 50 of the Federal Court Act might assist the Court in its task of evaluating the relevant competing public interests, it is for the Court to determine whether an order under the section "appears ... to be necessary in order to prevent prejudice to the administration of justice ... ." In a particular case the absence of opposition to the making of an order might not suggest to the Court that the making of the order was necessary in order to prevent prejudice to the administration of justice. Rather, the absence of opposition might suggest that the making of the order was sought to advance the private interests of the parties rather than to advance the public interest. In the circumstances of this case, his Honour might have been alert to the possibility that the initial failure of the respondents to oppose the making of the order sought was a tactical move calculated, at least in part, to undermine the suggestion that their conduct in respect of the charges laid against the applicant had been motivated by an ulterior purpose.

38 This case does not, in my view, call for a determination of whether the following passage from the judgment of Deane J in Australian Broadcasting Commission v Parish, upon which the applicant relied, accurately reflects the intention to be discerned in s 50 of the Federal Court Act. At 255-256 his Honour, who was in dissent as to the result of the case, observed:

"Damage and hardship to the individual from the working of legal processes can only be justified if they are warranted by countervailing benefit, or avoidance of prejudice, to the general administration of justice or by the legitimate claims and expectations of other individuals. When not so warranted, such damage or hardship is to the overall prejudice of the administration of justice."

As the primary judge's reasons for judgment disclose, this is not a case in which there were no factors which countervailed against the damage and hardship claimed by the applicant. His Honour identified, in addition to the general rule in favour of open justice, the legitimate public interest, and the interest of members of the Union, in knowing why a senior officer of the Union has been suspended.

39 In Australian Broadcasting Commission v Parish Deane J also observed (at 256):

"The decision whether an order under s 50 should be made will be the outcome of a balancing process in respect of which there will commonly be room for differences of opinion as to the weight to be attached to particular factors to be placed in the balance and, in the result, as to the precise outcome of the process itself. It is a decision that will ordinarily need to be made in the course and in the atmosphere of the particular proceedings. It will involve an assessment of a multiplicity of factors including the importance which the relevant evidence will play in the actual conduct of the particular proceedings and, in some cases, an assessment of the degree and nature of the publicity which is likely to follow a refusal to make an order."

There is no reason to conclude that his Honour's views as set out in this passage were not shared by other members of the Full Court. They demonstrate the need for an appellate court in a case of this kind to act with caution.

40 In my view, the interlocutory judgment of Weinberg J is not attended with sufficient doubt to warrant its being reconsidered by the Full Court. Further I am inclined to doubt that substantial injustice would result if leave were refused and the decision was erroneous. Were it a matter for me alone, I would refuse to grant the applicant leave to appeal. However, I understand and respect the reasons which have persuaded the other members of the Court that it would be appropriate in all of the circumstances for leave to appeal to be granted. In the circumstances I join with them in granting leave.

41 In my view, although the learned primary judge may have underestimated the significance of the statutory basis of the discretion vested in the Court by s 50 of the Federal Court Act, no error of principle has been identified in the process by which his Honour identified and evaluated the relevant competing factors in order to determine whether an order was necessary to prevent prejudice to the administration of justice.

CONCLUSION

42 For the above reasons I conclude that the appeal should be dismissed.

43 It appears that the only suppression order presently in force is that made by this Court on 5 August 2002. To protect the position of the applicant on an interim basis it was ordered on that day that the interim order made by Marshall J on 17 July 2002, the operation of which had been extended by Weinberg J on three occasions, should remain in force until further order of the Court. That order should have no further force or effect.

44 The appropriate orders, in my view, are the following:

1. The applicant be allowed until 2 August 2002 to file and serve a notice of motion seeking leave to appeal against the interlocutory judgment of Weinberg J dated 22 July 2002.

2. The applicant be granted leave to appeal from the interlocutory judgment of Weinberg J dated 22 July 2002.

3. The appeal from the interlocutory judgment of Weinberg J dated 22 July 2002 be dismissed.

4. The order of the Full Court pronounced on 5 August 2002 that order 1 of the orders made by Marshall J dated 17 July 2002 remain in force until further order be of no further force or effect.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated: 20 August 2002

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 455 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	CRAIG JOHNSTON APPLICANT
AND:	DOUG CAMERON (and others according to the Schedule of respondents) RESPONDENT

JUDGES:	BRANSON, TAMBERLIN AND FINKELSTEIN JJ
DATE:	20 AUGUST 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

TAMBERLIN J:

45 Before the Court is a Notice of Motion filed by Craig Johnston ("the applicant") for leave to appeal from a judgment of Weinberg J given on 22 July 2002, dismissing a Notice of Motion dated 19 July 2002, which sought suppression orders pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth) ("the Act"). Attached to the Notice of Motion was a draft Notice of Appeal from the judgment of Weinberg J delivered on 22 July 2002.

46 When the matter came on for hearing the Court, by consent, granted an extension of time within which the applicant could file an amended Notice of Motion and proceeded to hear the application for leave to appeal and the appeal itself together.

47 The only matter raised on the application for leave to appeal and the appeal itself concerns the question whether suppression orders should be made or continued under s 50 of the Act.

48 Section 50 of the Act provides:

"Prohibition of publication of evidence etc

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."

49 The matter first came before the Court on 17 July 2002 when a Rule to Show Cause pursuant to s 209 of the Workplace Relations Act 1996 (Cth) ("the Workplace Act") was granted to the applicant by Marshall J, returnable on 19 July 2002. The Rule called on the respondents to show cause why orders should not be made requiring them to perform and observe the Rules of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ("the Union") by treating as null and void and of no effect the resolutions of the National Council passed on 9 July 2002.

50 Section 209 of the Workplace Act relevantly provides as follows:

"209 Directions for performance of rules

(1) A member of an organisation may apply to the Court for an order under this section in relation to the organisation.

(2) Before making an order under this section, the Court shall give any person against whom the order is sought an opportunity of being heard.

(3) The Court may refuse to deal with an application for an order under this section unless it is satisfied that the applicant has taken all reasonable steps to try to have the matter the subject of the application resolved within the organisation.

(4) At any time after the making of an application for an order under this section, the Court may make such interim orders as it considers appropriate, and, in particular, orders intended to further the resolution within the organisation concerned of the matter the subject of the application.

...

(9) In this section:

...

order under this section means an order giving directions for the performance or observance of any of the rules of an organisation by any person who is under an obligation to perform or observe those rules." (Original emphasis)

51 Mr Johnston is the State Secretary of the Victorian Branch ("the Branch") of the Union. The respondents, other than the twenty-third respondent, Maurice Addison, are all members of the National Council of the Union. On the hearing before this Court leave was granted to two non-parties, The Age Company Limited and the Herald and Weekly Times Limited ("the newspaper groups") to intervene and make submissions.

52 Mr Johnston, in his application to Weinberg J, sought to have the respondents perform and observe the Rules of the Union by treating as null and void and of no effect the resolutions of the National Council passed on 9 July 2002 and the two charges laid against him on 3 July 2002, and by refraining from taking any further action or steps to investigate, hear or determine the charges.

53 Mr Johnston also sought interim orders pursuant to s 209(4) that until the hearing and determination of the proceeding or until further order, the respondents be restrained from taking any further action or steps to investigate, hear or determine the charges.

54 The proceedings came before Weinberg J as a matter of urgency on 22 July 2002 after Marshall J found that he was unable to continue hearing the matter. A suppression order in relation to evidence was made by Marshall J on 17 July 2002 by consent and this was extended on 19 July 2002. Weinberg J determined that the order pursuant to s 50 of the Act made by Marshall J should be varied. Weinberg J indicated that only a limited form of suppression would be ordered, prohibiting publication of the name of the complainant against Mr Johnston or any evidence that might tend to identify the complainant. This order was made on 22 July 2002. The reasons for judgment were delivered by Weinberg J on 30 July. On the former date his Honour was asked by counsel for Mr Johnston to continue the wider suppression order made by Marshall J until these reasons were delivered so that consideration could be given to a possible appeal and his Honour acceded to that request.

55 On the application before Weinberg J seven grounds were relied on to set aside the resolutions in question. His Honour considered that in relation to two of the grounds, which concerned inadequacy of notice and allegations of bias, the applicant had established that there was a serious question to be tried. His Honour considered that the submission based on absence of proper notice to be more cogent than the bias ground. His Honour did not consider that there was any substance or merit in any of the other grounds relied on. In the light of his findings his Honour decided to grant a limited measure of interim relief and to restrain the respondents from acting on the basis of the resolutions passed on 9 July 2002 which were not the subject of notice in accordance with the Rules of the Union.

56 The relevant background is fully set out in his Honour's reasons for judgment of 30 July in [10]-[61] and I will not repeat them here.

57 The applicant seeks an order prohibiting publication of specified parts of the evidence as set out in a schedule provided to the Court during the hearing on 5 August and any material which details the charges against the applicant of 3 July 2002 or identifies the alleged victim named in the charges against the applicant on that date. There was no challenge to the decision by Weinberg J that the identity of the complainant should not be disclosed.

APPLICANT'S SUBMISSIONS

58 The applicant first submits that the reference to the "administration of justice" in s 50 of the Act is not only a reference to the need to preserve open justice, but also includes a reference to another type of public interest, namely the public interest that the Court should endeavour to effectively achieve justice between the parties. Reference was made to the decision of the Full Court of this Court in Australian Broadcasting Commission v Parish [1980] FCA 33; (1980) 29 ALR 228 at 234 per Bowen CJ and Franki J at 244, where their Honours referred to the importance of administering justice between the parties.

59 It is submitted that the primary Judge failed to properly consider, or even consider at all, the importance of achieving justice between the parties. It is pointed out that the parties, at the time the order was first made by Marshall J, supported the application for a suppression order and that this consent was a matter which Weinberg J had not taken into account. I should interpose here to say that the respondents have since withdrawn their consent to the suppression. This is said to be as a result of two considerations. First, it was felt that the name of the complainant should not be disclosed and such an order was made by Weinberg J. The second basis for the change in approach is that it said that the preservation of the integrity of the proceedings before the National Council no longer requires consent to the suppression order.

60 The applicant submits that while the Court must have regard to the principles of open justice, the legislature, by providing specific powers in s 50, has intended that in appropriate cases, the Court should exercise those powers to ensure that a party shall not be seriously prejudiced. Such prejudice could arise from embarrassment to a party or the family of a party. In this case it is clear that the publication of the allegations will be a source of serious embarrassment and could damage the reputation of the applicant. It is said that the damage and hardship that would arise from the legal process means that in the event that the applicant was to be successful in the proceedings and no suppression order was made, there would be unnecessary and unjustified oppression visited on the applicant, without any consequent enhancement of the administration of justice. The applicant commenced the proceedings to protect his reputation which is at risk of serious damage if the charges before the National Council proceed. His case is that the charges were a serious abuse of process. He has also attributed an ulterior purpose to the respondents in passing the resolutions, namely that they were brought for the purpose of discrediting him in order to enhance the interests of the National Council.

61 The applicant says that if the charges are publicised, any victory which might ultimately be achieved in the proceedings would be pyrrhic and would be rendered meaningless thereby severely comprising the administration of justice between the parties in this case. He referred to the decision in Versace v Monte [2001] FCA 1565 in which an order was made under s 50 of the Act suppressing the contents of a book in circumstances where the applicant sought to prevent its dissemination on the ground that it contained serious false representations. In that case, the Court considered that the purpose of the proceedings would be frustrated if the contents were able to be published prior to a final determination of the proceedings under the guise of privilege in that the relief granted would be rendered ineffective.

62 The applicant also referred to two South Australian cases, namely G v The Queen (1984) 35 SASR 349 and The Queen v Hermes; Ex Parte V [1963] SASR 81. It is said that the statutory provisions under which those cases were decided were for all practical purposes identical to s 50 and they demonstrated that even in criminal cases the courts will interfere with the presumption of the openness of court proceedings. By way of juxtaposition, the applicant refers to the police investigations presently on foot and to the fact that the police have not yet laid charges. Taking this into account, it is said that the case for suppressing the nature of the allegations in this proceeding is stronger than in circumstances where the police have laid charges because of the filtering process inherent in the laying of charges in respect of the sufficiency of evidence.

63 It is also submitted that the effect of the refusal by Weinberg J to grant an extension of the suppression order is that the details of the allegations against the applicant may be published and that it is likely they will receive broad publicity because the applicant is a controversial figure with a high public profile. This will lead to irreparable damage to the standing of the applicant. If he is ultimately successful and obtains an order that the actions taken under the Union Rules are of no effect, then he will have been unnecessarily exposed to damaging publicity. The applicant points to the possibility that the charges under the Union Rules may never be heard and it is said that this is a likely outcome if the police conclude that no criminal charges should be laid against him.

REASONING ON APPLICATIONS AND APPEAL

64 In my view the Court should grant leave to appeal. The principles which govern the grant of leave to appeal are well known and are set out in Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 as follows:

(i) whether in all the circumstances the decision is attended with sufficient doubt to warrant it being reconsidered, and

(ii) whether substantial injustice would result if leave were refused supposing the decision at first instance was wrong.

65 For reasons given below in relation to the substance of the appeal grounds I consider these conditions have been satisfied and that the Court should grant leave to hear the appeal. I consider that there is sufficient doubt, in the sense of the contrary being reasonably arguable, as to the correctness of the decision and that there would be significant adverse impact on the reputation and standing of the applicant if the decision were held to be in error.

66 In the leading case of Scott v Scott [1913] AC 417 the House of Lords held that the Probate, Divorce and Admiralty Court had no power, either with or without the consent of parties, to hear a nullity suit or other matrimonial suit in camera in the interests of public decency. Although the principles relating to a hearing in camera and the making of evidence or information confidential are not co-extensive, similarities nevertheless exist. It is not necessary that a hearing be in camera in order that evidence can be made confidential. A condition of confidentiality can be imposed in respect of evidence given in a public hearing. In his reasons in that case, Viscount Haldane LC, at 439, said:

"A mere desire to consider feelings of delicacy or to exclude from publicity details which it would be desirable not to publish is not, I repeat, enough as the law now stands. I think that to justify an order for hearing in camera it must be shewn that the paramount object of securing that justice is done would really be rendered doubtful of attainment if the order were not made."

67 In that case Lord Shaw explained the basis of the principle of open justice by referring to the writings of Bentham, when he said at 477:

"`Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice.' `Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.' `The security of securities is publicity.'"

68 It is important to keep in mind that in order to secure the suppression of evidence, the Act specifies that it must appear to the Court to be "necessary" to make such an order. Unlike other legislative provisions the language of s 50 does not use words such as "desirable", "undue hardship", or "damage to reputation": cf Hermes; Ex Parte V. That case is distinguishable. It involved a charge that the accused had behaved in an indecent manner in a public place. A magistrate had made an order suppressing the name of the accused. The decision turned on the expression "desirable". In addition, the remarks made by the Court were obiter and were expressed in tentative terms. The Court observed at 85:

"In these circumstances it may be proper for us to express the opinion that, where a Court has seen fit to forbid the publication of the name of a defendant until further order, and the complaint is eventually dismissed, the Court need - and, perhaps, should - not, in the exercise of its discretion, make an order releasing the name of the defendant for publication, unless at the request of the defendant. Although, as a matter of pure logic, it may be said that no harm is done to a man by publishing the fact that he has been acquitted of a particular charge, there is little doubt that people are inclined to believe that there is `no smoke without fire'; and the mere knowledge that a man has been accused of a crime which the community regards as particularly sordid may suffice to condemn that man in the eyes of many, even though (as in this case) he has been acquitted on the merits by the Court hearing the charge." (Emphasis added)

69 Another authority relied on by the applicant is the case of G v The Queen. There the accused was charged with the abduction and murder of a child in a case which attracted great publicity. An order was obtained from a magistrate which suppressed the name of the accused. The relevant statutory provision in that case referred to the desirability of exercising the powers in the interest of the administration of justice. It referred to an order being "desirable" in order to prevent "undue prejudice" or "undue hardship" to any person and empowered the Court to make a suppression order which prohibited the publication of the name of any party or witness or any material tending to identify such a person. Again, the language is significantly different from that in s 50 in referring to the expressions "desirable", "undue prejudice" and "undue hardship".

70 The leading authority in this Court in relation to the application of s 50 is Parish, which was a decision of the Full Court. In that case the Court was asked to consider the operation of s 50 in relation to making a confidentiality order suppressing the contents of a commercial agreement, on the basis that proceedings before the Court should not be permitted to destroy or seriously depreciate the value of certain confidential information contained in the agreement. If it were otherwise, not only might the parties and members of the public consider that the Court was not paying proper regard to confidentiality, but it might also open the way to abuse.

71 As Bowen CJ pointed out, the question whether an order should be made under s 50 is a matter within the discretion of the trial Judge and although an appeal may lie as of right, the Full Court should not interfere with the primary Judge's exercise of the discretion unless it appears that an error of principle has been committed as described in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504. The Court on appeal must be satisfied that the primary Judge was plainly wrong before interfering with the exercise of a discretion. After referring to the types of proceedings in which confidentiality orders have been made, such as those concerning secret processes where publication would destroy the secrecy of the process and the subject matter of the proceedings, and cases where proceedings were brought to restrain publication of confidential material, Bowen CJ pointed out that the possible cases where an order might be necessary to prevent prejudice to the administration of justice range widely and that the categories of this public interest are not closed. His Honour also referred to the collocation of the alternative phrase "security of the Commonwealth" in the section and considered that this suggested that Parliament was concerned with detriment of a high order. At 236, his Honour said:

"Although the principle of open justice is of great importance in exercising the discretion under s 50, it is not necessarily the whole weight of that principle which must be placed in the scales. The derogation from the principle, which is involved in making any order under s 50, may be very great; or it may not be great; it may be very small. In placing that principle in the scales, the degree of derogation involved in the proposed order is an important matter to be considered." (Emphasis added)

72 His Honour considered that the primary Judge in that case had placed excessive emphasis on the principle of open justice and had not paid sufficient attention to the destructive effect of a refusal to make a suppression order. Deane J, in his judgment, approached the matter in this way, at 254:

"In every case, one starts with a prima facie rule that the proceedings of the Federal Court should be conducted in open court with public access to the evidence. The whole point of the section [s 50] is, however, to confer a broad discretionary power to depart from this prima facie rule and the weight to be given, as a factor in the weighing process, to the prima facie desirability of the open administration of justice will vary from case to case according to the nature of the case and the materiality of the evidence. Public confidence in the administration of justice is, for example, unlikely to be significantly impaired by an order for confidentiality if the case is a civil one in which no issues of general public interest of which confidentiality is [sic] granted can be readily perceived to be of little materiality to the outcome of the proceedings. The fact that the case is one in which the relevant evidence is of real materiality to the outcome of proceedings of general public importance will not, however, be the end of the matter." (Emphasis added)

73 His Honour went on to say:

"In considering an application for an order for confidentiality ... the weight to be given to the prima facie desirability of the evidence in proceedings before the Federal Court being open to the public may vary according to whether the other party to the litigation opposes, or consents to, the making of the order sought. This is not only because an order under s 50 will affect the prima facie right of the litigant that the evidence in his particular case be open to public scrutiny. It is also because there is less likelihood of damage to public confidence ... if an order for confidentiality is made in circumstances where the parties to the litigation are agreed that the order should be made, than if such order is made in circumstances where the other party or parties protest against the relevant evidence being concealed from public scrutiny." (Emphasis added)

74 In the present case, the material sought to be suppressed is important for the resolution of the dispute and represents a significant derogation from the principle of open justice, to use the language of Bowen CJ. Although the proceeding in this case is civil in character, matters that, if proven, would amount to criminal conduct are raised. They are raised in the context of an area of general public interest, namely the administration of a large union concerning its operation at both national and state levels. The nature of the allegations and the specific evidence sought to be suppressed are material to the outcome of the proceedings. In addition, as alluded to earlier, the parties are no longer in agreement that the suppression order should be maintained. In these respects the present circumstances differ from the example given by Deane J in the above quotation.

75 The remarks of Bowen CJ emphasise the need for substantial and serious grounds of a high order before departing from the principle that justice should be administered with full transparency so far as practicable. Underlying this principle is the need for public confidence in, and public understanding of, the process by which justice is administered. There is a significant public interest in being able to follow the way in which disputes are resolved in the Court and the suppression of allegations, evidence, or identity may result in loss of confidence or community mistrust of the process of the administration of justice. For that reason, a strong basis for departure from the prima facie rule must be established.

76 In argument it was said that it may not be "necessary" to make the precise evidence public because the dispute may be resolved and understood at a higher level of generality without the necessity to disclose the detailed evidence or for such evidence to be made public because the case could be decided on the premise, for example, that "serious allegations" have been made. Such an argument wrongly suggests that the issue for the Court to consider is whether members of the public need to know the details of the information sought to be suppressed. It does not account for the fact that in determining whether to make a suppression order, the Court must proceed on the assumption that the public are entitled to see justice administered with full access to the evidence unless it is necessary that, in order for justice to be done, the material ought be kept confidential.

77 In the present case it was submitted for the applicant before Weinberg J that it was necessary to consider the credibility of the charges and the likelihood of them being dealt with in a proper way and that the Court might have "significant disquiet" as to the chances of the charges succeeding, especially having regard to the contradictory statements made by the critical witness. As mentioned earlier, the case sought to be advanced for the applicant is to the effect that the evidence, some of which is sought to be suppressed, is inconsistent and insubstantial and is being used for an ulterior political purpose, namely as part of a political campaign coordinated by Mr Cameron to remove the applicant from holding any influential position within the Union. The fact that such an argument may require consideration of the allegations made and the evidence said to support them, in order to consider if such a submission has any merit, underlines the significance of the material sought to be suppressed. It appears to be of central importance to know the specific allegations and evidence in order to assess whether there is any substance or contradiction and for the public to understand what is being canvassed before the Court.

78 The reference to the "due" administration of justice is sufficiently broad to include both the making of the appropriate determination in the particular dispute and also the broader considerations concerning the administration of justice in a more general sense. The latter may include taking into account, for example, such considerations as the need to avoid a situation where a potential witness refuses to come forward because of a perceived lack of confidentiality which could affect reputation or standing or embarrass the witness.

79 While the reference to "due" administration of justice is broad enough to include considerations of hardship to individuals or entities by directing attention to consequences of non-suppression, these consequences must be balanced against the requirement in the section that it be "necessary" to make a suppression order. In the present case the suppression of the material cannot, in my view, be said to be necessary or essential to the proper consideration and determination of the issues presented to the Court. The disadvantage to the applicant is rather of a collateral nature arising from the commencement of proceedings before the Court. If the allegations and the evidence are made public there is nothing to prevent the dispute being determined in a due and proper manner and appropriate orders made. In the event that the applicant is successful he can, if he wishes, publicise the outcome just as any other successful party may do so. Any rights which he may have under the general law as to defamation or otherwise as a consequence of a successful outcome to his case can be availed of by him.

PRIOR DISCLOSURE

80 On 5 July 2002 all members of the National Council were given notice of the special National Council meeting on Tuesday 9 July 2002 and copies of documents relevant to the discussions at that meeting were enclosed, including copies of the charges and proposed resolutions, together with an interim report produced by an independent inquiry. The letter from Mr Cameron of 5 July notifying the meeting stated in the final paragraph:

"Finally, I would direct that all members of National Council treat this correspondence and all the attachments on a strictly confidential basis and not divulge the contents of it, nor discuss these matters, with any other person prior to the meeting of National Council on 9 July 2002." (Emphasis added)

81 As at 8 July the applicant was a member of the National Council within the terms of the above restraint. He was one of the parties to whom the notice of meeting was sent on 5 July 2002 by Mr Cameron, the National Secretary.

82 In considering what is necessary for the due administration of justice, it is appropriate to take account of any prior disclosure that has been made in relation to the allegations or the evidence the subject of the proceedings. At the Victorian State Council meeting on 8 July, the applicant informed the Council of the charges that had been brought against him and said that he should not be asked to name the victim and that the details should not be discussed at the meeting. The evidence is that when this statement was made to the State Council there were approximately twenty-eight members of the Victorian State Council in attendance. In making this disclosure he appears to have been in breach of the direction of 5 July 2002.

83 On 9 July 2002 there was a meeting of the members of the National Council at which twenty-three members and two observers were present. At that meeting the charges of gross misbehaviour were set out alleging that the applicant had sexual intercourse with an unnamed person who was an employee of the Union without her consent. On 1 August 2002, an article appeared in The Australian newspaper stating that there was a police investigation into allegations of the applicant's gross misconduct towards a female Union employee. There are some further statements in relation to the matter in that article. The article was drawn to the attention of the parties on the hearing before this Court and they were given an opportunity to make submissions in relation to it. These circumstances indicate that the allegations have not been kept confidential to the applicant or to a small circle, but rather that the broad nature of the allegations has been disseminated to a significant section of the public.

84 It must also be mentioned that at the hearing before Weinberg J, there was no order sought that the proceedings be closed to the public, although there was in force during that hearing a confidentiality order in respect of the relevant information.

85 The fact that there has been substantial disclosure in this case must be weighed in considering the necessity of granting the application for suppression. If public access is denied in relation to more precise detail, there is a greater possibility of a perception in the community that there is something of a serious nature which is sought to be suppressed. This is especially so where the proceedings involve issues pertaining to the conduct of a public figure. This, in my view, weighs against the case advanced by the applicant.

86 During the hearing there was some discussion as to the extent to which the allegations, their consideration and the precise evidence were required to be treated as confidential according to the Rules of the Union. On the limited material before the Court it is not possible to determine these issues and therefore I have not addressed the question as to the effect of the Union Rules. Moreover, in view of the matters which have been referred to above it is unnecessary to reach a conclusion on this point in the present case. It is nevertheless clear that the Rules of the Union are not binding on non-members of the Union. It is by no means clear as a question of construction whether the Rules extend to making orders requiring confidentiality in circumstances such as the present and I express no concluded opinion on this point.

87 Having regard to the above considerations I do not find that there has been any error of principle in the exercise of discretion by the primary Judge in this case. Accordingly, the appropriate orders are that the application for extension of time be granted, leave to appeal be granted in relation to the suppression orders and the appeal be dismissed. The suppression orders presently in force should be set aside with the exception of any order relating to the complainant's identity. I agree with the form of orders proposed by Branson J.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated: 20 August 2002

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 455 of 2002

On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN:	CRAIG JOHNSTON Applicant
AND:	DOUG CAMERON (and others according to the Schedule of respondents) Respondents
JUDGES:	BRANSON, TAMBERLIN AND FINKELSTEIN JJ
DATE OF ORDER:	20 AUGUST 2002
WHERE MADE:	MELBOURNE

REASONS FOR JUDGMENT

FINKELSTEIN J:

88 I agree that Mr Johnston should be granted leave to appeal and that his appeal should be dismissed, broadly for the reasons given by the other members of the court.

89 I wish to add one or two comments. Mr Johnston seeks to prohibit the publication of evidence which will give details about his alleged gross misbehaviour. It is already publicly known that the allegation being made against Mr Johnston is that he sexually assaulted a female union employee. The evidence below provides the detail. It is not particularly pleasant. Mr Johnston alleges that the complaint is a concoction and, if it is, that makes the evidence even more unpalatable. So it easy to understand why Mr Johnston wishes to have it suppressed. And if it is all untrue, as Mr Johnston says, no doubt he will be seriously embarrassed and perhaps prejudiced even if there is a finding in his favour in due course.

90 On the facts under consideration, my view is that the only basis for a suppression order under s 50 of the Federal Court of Australia Act 1976 (Cth) is if the failure to make an order would prevent or deter a person such as Mr Johnston from bringing his action, or if there was a real risk as opposed to a remote possibility that this would occur. Every citizen has a right to have his or her rights and obligations ascertained in a court of law. If going to court would expose the citizen to public condemnation, abuse or defamatory comments such as would deter him from proceeding, this would be prejudicial to the administration of justice. Prejudice of this type can be avoided by a suppression order.

91 This is a borderline case. The fact that there has already been some disclosure of the allegation made against Mr Johnston is beside the point. The publication was to a small group, and did not go into detail. The information which is already in the public domain is not of a type that would dissuade any reasonable person from litigating a cause. Publication of the details, which so far have not been made public and the truth of which is not an issue in the proceeding, is altogether of a different order. However, while I think this case presents some difficulties, I do not think that the trial judge erred in the exercise of his discretion.

92 Here we are concerned with two public interests which on occasion can come into conflict. On the one hand there is the principle of open justice and on the other hand there is the principle that there should be unimpeded access to the courts. The two interests must be held in balance. I do not think that the balance was skewed when the trial judge refused to make the orders sought.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

Associate:

Dated: 20 August 2002

Counsel for the Applicant:	Mr H Borenstein SC with Mr P Rozen
Solicitor for the Applicant:	Stary Myall
Counsel for the 1st to 22nd Respondents:	Mr S Rothman SC
Solicitor for the 1st to 22nd Respondents:	Taylor & Slott
Counsel for the 23rd Respondent:	Mr R Niall
Solicitor for the 23rd Respondent:	Holding Redlich
Counsel for the Intervenor:	Mr D Gilbertson
Solicitor for the Intervenor:	Minter Ellison
Date of Hearing:	5 August 2002
Date of Judgment:	20 August 2002

SCHEDULE OF RESPONDENTS

Julius ROE	Second Respondent
Jennifer DOWELL	Third Respondents
Ian JONES	Fourth Respondent
Mike NICOLAIDES	Fifth Respondent
Dave OLIVER	Sixth Respondent
S WALSH	Seventh Respondent
A PERKINS	Eighth Respondent
A DONNELLAN	Ninth Respondent
P JOHNSTON	Tenth Respondent
D SMITH	Eleventh Respondent
Dave HARRISON	Twelfth Respondents
P LEES	Thirteenth Respondent
G WILSON	Fourteenth Respondent
Paul BASTIAN	Fifteenth Respondent
G HINGLE	Sixteenth Respondent
John PARKIN	Seventh Respondent
J REID	Eighteenth Respondent
P WISNIEWSKI	Nineteenth Respondent
Jim WATSON	Twentieth Respondent
Jock FERGUSON	Twenty-first Respondent
D SARGENT	Twenty-second Respondent
M ADDISON	Twenty-third Respondent