Z v University of A, Dr D & B (No. 4) [2002] NSWADT 14 (8 February 2002)

Last Updated: 16 May 2002

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: Z -v- University of A, Dr D & B (No. 4) [2002] NSWADT 14

PARTIES: APPLICANT

Z

FIRST RESPONDENT

University of A

SECOND RESPONDENT

Dr D

THIRD RESPONDENT

B

FILE NUMBERS: 001001

HEARING DATES: 20/11/2001

SUBMISSIONS CLOSED: 20/11/2001

DECISION DATE: 08/02/2002

BEFORE: Goode P - Judicial MemberClayton S - MemberMcDonald O - Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Anti-Discrimination Act 1977

CASES CITED: Z v University of A (No. 3) [2001] NSWADT 182

Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47

Australian Broadcasting Corporation v Parish [1980] FCA 33; (1980) 43 FLR 129, 29 ALR 228

Re Armstrong and State of Wisconsin (1972) 7 CCC(2d) 331

CB v The Queen (1982) 62 CCC(2d) 107

John Fairfax & Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465

Fe Ventura v Walt Disney Television Animation Pty Ltd NSWEOT 32 of 1998; A on behalf of V & A v NSW Department of Education NSWADT 109 of 1998

Crook and Department of Education and Training NSWEOT, 26 September 1998

Lloyd v TCN Channel Nine Pty Ltd & Anor [1999] NSWADTAP 3

APPLICATION: Order prohibiting or restricting publication etc

summons - general principles

MATTER FOR DECISION: Preliminary matter

APPLICANT REPRESENTATIVE: APPLICANT

In person

RESPONDENT REPRESENTATIVE: RESPONDENTS

K Grime, solicitor

ORDERS: · Pursuant to s 75 (2B) of the Tribunal Act, we order that the Tribunal's suppression order of 20 July 2001 ("Order 1") be continued subject to the variations set out in Orders 2 - 4 below:

Order 2: The parties to this application (including any persons proposed to be joined to the proceedings by any party), their legal representatives or other advisors are at liberty to disclose the identities of the persons referred to in Order 1 for the purposes of:

(i) taking statements from potential witnesses; or

(ii) seeking information from other persons directly related to the preparation for any hearing before the Administrative Decisions Tribunal in relation to the Applicant's Case.

Order 3: When disclosing the identities of persons referred to in Order 1, for the purposes outlined in Order 2, the parties must bring to the attention of any persons to whom the disclosure is made this Order prohibiting any further disclosure of identities.

Order 4: Should any party wish to disclose the identity of any person described in Order 1 in circumstances outside the scope of Order 2, they have liberty to apply to this Tribunal, ex parte if desired, to vary the Orders. The Tribunal will determine, if the Orders' variation is made ex parte, whether to make any further Orders in confidence and / or whether to inform the other parties.

· Pursuant to s 75 (2)(b) of the Tribunal Act, we order that:

· Disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, the Applicant ; or

· The doing of any other thing that identifies, or may lead to the identification of, any such person,

is prohibited.

· We order that the summons addressed to the Reserve Bank of Australia be set aside.

· We order that the summons addressed to Chung Soy Sun, C/- The University of NSW, be issued by the Registrar of the Tribunal.

Reasons for Decision:

Introduction

1 The Tribunal has before it the following matters:

(1) An application by the Applicant for an order under s 75(2B) of the Administrative Decisions Tribunal Act 1997 (the "Tribunal Act") revoking the existing order made by the Tribunal under s 75(2)(b) of the Tribunal Act on 20 July 2001 prohibiting the disclosure of any material or the doing of any other thing that identifies or may lead to the identification of A, Dr D and B and 6 other named persons. The 6 other named persons are referred to in the Tribunal's joinder decision of 8 November 2001 as C and Professors E, G, J, H and I: see Z v University of A (No. 3) [2001] NSWADT 182.

(2) An application by the Applicant for an order under s 75(2)(b) of the Tribunal Act prohibiting the disclosure of any material or the doing of any other thing that identifies him or may lead to his identification.

(3) The relevance of 2 summonses to produce documents.

2 On 20 July 2001, the Tribunal made an order under s 75(2)(b) of the Tribunal Act prohibiting:

disclosure of the name, address, picture or any other material that identifies or may lead to the identification of the 3 Respondents and the 6 other named persons (for convenience, hereinafter referred to collectively as the "Respondents"); or

the doing of any other thing that identifies or may lead to the identification of any such persons.

3 In relation to the first matter, the Respondents seek a continuation of the suppression order but have no objection to the Tribunal varying the order, pursuant to s 75(2B) of the Tribunal Act, to enable the Applicant to prepare his case (see para 21 below).

4 In relation to the second matter, the Respondents do not oppose the making of a suppression order in the terms sought by the Applicant.

5 In relation to the third matter, the Respondents do not concede that the summonses in question have any relevance to the proceedings.

Section 75 of the Tribunal Act

6 Section 75 provides:

"(1) If proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the public.

(2) However, if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:

(a) an order that the hearing be conducted wholly or partly in private

(b) an order prohibiting or restricting:

(i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Tribunal or a witness summoned by, or appearing before, the Tribunal), or

(ii) the doing of any other thing that identifies, or may lead to the identification of, any such person,

(b1) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Tribunal,

(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

(2A) The Tribunal cannot make an order under subsection (2)(b) in respect of any proceedings to which section 126 applies.

(2B) The Tribunal may from time to time vary or revoke an order made under subsection (2).

(3) Mediation sessions and neutral evaluation sessions under Part 4 are to be conducted in private."

7 Since s 126 does not apply to the present proceedings, it is not necessary to comment on it.

8 Section 75(1) of the Tribunal Act reflects the general principle that justice should be administered openly, whether in a court or in a tribunal. In Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 55 Kirby P (as he then was) said the following:

" . . . by our tradition, the open administration of justice is the rule. Statutory derogation from openness is the exception. In defence of the rule, such statutes will usually be strictly and narrowly construed. Unless the derogation is specifically provided for, courts are loathe to expand the field of secret justice: see Australian Broadcasting Corporation v Parish [1980] FCA 33; (1980) 43 FLR 129 at 133, 135-136; [1980] FCA 33; 29 ALR 228 at 233-234, 236; see also Re Armstrong and State of Wisconsin (1972) 7 CCC(2d) 331; CB v The Queen (1982) 62 CCC(2d) 107."

See also John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131, particularly at 143.

9 Consistent with the remarks quoted above, McHugh JA (as he then was) made the following observation in John Fairfax & Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465 at 476:

"The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule."

10 By including s 75(2)(b) in the Tribunal Act, Parliament has clearly modified the principle of 'open justice'. However, before deciding in favour of making a suppression order, the Tribunal is specifically required to satisfy itself that it is desirable to do so by reason of:

the confidential nature of any evidence, or

the confidential nature of any matter, or

for any other reason.

11 Although the discretion vested in the Tribunal pursuant to s 75(2)(b) appears to be a reasonably broad one, given the presence of s 75(1), it should not in our view be exercised in favour of making a suppression order unless the circumstances clearly warrant such an order being made.

12 Our attention was drawn to various Tribunal decisions which have dealt with the issue of suppression : see, for example, Fe Ventura v Walt Disney Television Animation Pty Ltd NSWEOT 32 of 1998; A on behalf of V & A v NSW Department of Education NSWADT 109 of 1998; Crook and Department of Education and Training NSWEOT, 26 September 1998; and Lloyd v TCN Channel Nine Pty Ltd & Anor [1999] NSWADTAP 3.

13 With the exception of Lloyd v TCN Channel Nine Pty Ltd & Anor, the other cases cited above were decided under a different statutory framework, viz, s 101B and s 110A of the Anti-Discrimination Act 1977 (the "Act"). Sections 101B and 110A have since been repealed and replaced by s 75 of the Tribunal Act.

14 Relevantly, s 101B of the Act provided:

"(1) An inquiry shall be held in public unless a direction under subsection (2) is in force in respect of the inquiry.

(2) Where, before the holding of an inquiry, or at any stage during the holding of an inquiry, the Tribunal considers it appropriate to do so (whether on its own motion or on the application of a party to the inquiry), the Tribunal may direct that the whole or any part of the inquiry be held in private.

. . . "

15 Section 110A(1) of the Act provided:

"(1) Where, before the holding of an inquiry, at any stage during the holding of an inquiry or after the holding of an inquiry, the Tribunal considers it appropriate to do so (whether on its own motion or on the application of a party to the inquiry), the Tribunal may give directions prohibiting or restricting:

(a) . . . .

(b) the disclosure of any information or the doing of any thing which identifies, or may lead to the identification of, any person (whether or not a party to the inquiry or a witness summoned by, or appearing before, the Tribunal) who may, in the opinion of the Tribunal, be adversely affected by being so identified."

16 In Fe Ventura v Walt Disney Television Animation Pty Ltd NSWEOT 32 of 1998, pursuant to s 110A of the Act, the complainant sought a non-publication direction prohibiting identification of herself on the ground that some of the allegations of sex discrimination were of such a personal and sensitive nature that publication of her identity would reflect adversely on her and would aggravate the embarrassment and stress from which she already suffered. Murrell DCJ held that the complainant's embarrassment and stress were an insufficient basis for departing from the general rule that the Tribunal's proceedings should be conducted openly.

17 Before making a suppression order under s 110A(1)(b) of the Act, the Tribunal was clearly required to make a determination as to whether a person might be adversely affected by being identified. Since s 75(2)(b) of the Tribunal Act requires no such determination, the Tribunal's discretion to make a suppression order now appears to be somewhat broader, notwithstanding the presence of s 75(1).

18 In Lloyd v TCN Channel Nine Pty Ltd and Anor [1999] NSWADTAP 3, after balancing the competing interests involved, the Appeal Panel refused an application by TCN Channel Nine Pty Ltd to publish the name of the Appellant. The decision contains a useful analysis of the law relating to suppression orders and how it relates to the powers of the Tribunal under the Tribunal Act. Much of the decision deals with the (then) tension between s 75 and s 126 of the Tribunal Act. Although s 126 has since been amended, much of the general discussion about suppression orders and s 75 is still applicable: see particularly paras 130 - 144.

Revocation of Suppression Order of 20 July 2001

19 The Applicant seeks to revoke the existing suppression order made on 20 July 2001. The Tribunal's power to do so is found in s 75(2B) of the Tribunal Act. Section 75(2B) also allows the Tribunal to vary a suppression order.

20 The Applicant's written reasons for seeking a revocation of the existing suppression order are set out in Exhibits A and B. They were expanded upon during the course of oral argument on 20 November 2001. Inter alia, the Applicant submits that the existing suppression order prevents him from talking to potential witnesses and from preparing his case.

21 The Respondents' written reasons for seeking a continuation of the suppression order (subject to the variations stated below) are set out in Mr Grime's letter to the Registrar dated 15 October 2001 (Exhibit 1). They were also canvassed by Mr Grime during the course of oral argument on 20 November 2001. The Respondents do not object to the Tribunal varying the existing order so as to accommodate the particular concerns expressed by the Applicant (see para 20 above) and to enable him to be free, for the purposes of preparing his case, to speak to potential witnesses, legal representatives, other advisors and other persons connected to the preparation of his case. Beyond this, the Respondents object to the disclosure of any material or the doing of any other thing that identifies them or may lead to their identification.

22 The Respondents' reasons for seeking a continuation of the suppression order (subject to the stated variations) are set out in paras 23 - 27 below.

Respondents' Submissions

23 The Applicant has made many allegations of improper conduct against the Respondents including allegations of impropriety that go beyond the jurisdiction of the Tribunal (eg, corrupt conduct, fraud and various breaches of both the Crimes Act 1914 (Commonwealth) and Crimes Act 1900 (NSW). Thus far these allegations are supported only by the Applicant's unsworn assertions. Regardless of whether the Applicant is ultimately able to prove his case, the public airing of these allegations is likely to severely damage the reputations of all of the Respondents. In the circumstances, the potential damage to the Respondents is greater than any potential harm to the Applicant.

24 In bringing proceedings against the Respondents, the Applicant has indicated a desire to cause hurt, distress or embarrassment to many, if not all of the Respondents. (In support, reliance is placed on the emails tendered in the earlier joinder proceedings.)

25 The Applicant's wide ranging allegations against the Respondents are not supported by any objective evidence and, in some instances, they appear to be based on material gathered by "telepathic" means.

26 On prior occasions, particularly in relation to the issuing of summonses, the Applicant has expressed an intention to use material (gathered for the purpose of proving his case) beyond the scope of the Tribunal proceedings. One example is the Applicant's allegations of plagiarism against Dr D.

27 Apart from the Respondent University, none of the Respondents had any role to play in the investigative processes before the Anti-Discrimination Board. Accordingly, there has been no opportunity to test, even at an informal level, the strength of the many serious allegations made against the Respondents.

The Tribunal's View

28 The Applicant disputes the interpretation placed by the Respondents on the matters referred to in paras 23 - 27 above. Nonetheless, taking into account all the competing considerations, including the fact that many of the Respondents' submissions are supported by documentation (to some extent at least), the Tribunal is currently satisfied that it is desirable to continue the present suppression order subject to the stated variations. Accordingly, we propose to make the orders sought by the Respondents (see para 38 below).

29 In reaching the above view, we wish to stress that should circumstances change warranting the lifting of the suppression order, we may need to reconsider our current decision.

Order Prohibiting the Identification of the Applicant

30 Pursuant to s 75(2)(b) of the Tribunal Act, the Applicant seeks an order prohibiting the disclosure of any material or the doing of any other thing that identifies him or may lead to his identification. He submits that given the nature of the counter allegations made against him, particularly those made by Dr D and B, any identification of him is likely to unjustifiably and irreparably damage his career and reputation as well as cause harm to his family. These counter allegations include accusations that the Applicant sexually harassed various persons, including Dr D. They are all denied by the Applicant.

31 The Respondents do not oppose the making of the order sought. Taking all relevant matters into consideration, the Tribunal is satisfied that it is desirable to make such an order. Accordingly, we propose to do so in the terms sought by the Applicant (see para 39 below).

Relevance of Summonses

32 The first summons is addressed to the Reserve Bank of Australia and seeks the following:

"Provide the name or names of the people who interview[ed] [Dr D] for his application for employment with the Reserve Bank of Australia.

Also provide the name or names of the people who received a reference from [Professor E] as a referee identified in the written application for employment of [Dr D] to the Reserve Bank.

For the people above, identify their position with the Reserve Bank (ie. manager) and what department they belong to in the Reserve Bank (ie. Payments Policy Department).

For the people above, identify if they are still employees of the Reserve Bank at the time of this summons."

33 The Applicant submits inter alia that the documents sought are relevant to Dr D's credit and the nature of his relationship with the Respondent, in particular Professor E. Mr Grime submits inter alia that the documents sought are not relevant to any of the issues in the Applicant's case and that the summons amounts to fishing.

34 On balance, we are not satisfied that the documents in question have any relevance to the issues before the Tribunal. Accordingly, we propose to set the summons aside.

35 The second summons is addressed to Chung Soy Sun, C/- The University of NSW, and seeks:

"A copy of the acknowledgement page of [a named student's], University of [A] Honours thesis."

36 We are satisfied that the document sought may have some relevance to the Applicant's case. Accordingly, we propose to order that the summons be issued by the Registrar of the Tribunal.

Orders

37 The Tribunal's orders are set out in paras 38 - 41 below.

38 Pursuant to s 75 (2B) of the Tribunal Act, we order that the Tribunal's suppression order of 20 July 2001 ("Order 1") be continued subject to the variations set out in Orders 2 - 4 below:

Order 2: The parties to this application (including any persons proposed to be joined to the proceedings by any party), their legal representatives or other advisors are at liberty to disclose the identities of the persons referred to in Order 1 for the purposes of:

(i) taking statements from potential witnesses; or

(ii) seeking information from other persons directly related to the preparation for any hearing before the Administrative Decisions Tribunal in relation to the Applicant's Case.

Order 3: When disclosing the identities of persons referred to in Order 1, for the purposes outlined in Order 2, the parties must bring to the attention of any persons to whom the disclosure is made this Order prohibiting any further disclosure of identities.

Order 4: Should any party wish to disclose the identity of any person described in Order 1 in circumstances outside the scope of Order 2, they have liberty to apply to this Tribunal, ex parte if desired, to vary the Orders. The Tribunal will determine, if the Orders' variation is made ex parte, whether to make any further Orders in confidence and / or whether to inform the other parties.

Pursuant to s 75 (2)(b) of the Tribunal Act, we order that:

disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, the Applicant ; or

the doing of any other thing that identifies, or may lead to the identification of, any such person,

is prohibited.

We order that the summons addressed to the Reserve Bank of Australia be set aside.

We order that the summons addressed to Chung Soy Sun, C/- The University of NSW, be issued by the Registrar of the Tribunal.