LD v Director General, Department of Education and Training and anor [2009] NSWADT 14 (27 January 2009)

Last Updated: 6 February 2009

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
LD v Director General, Department of Education and Training and anor [2009] NSWADT 14


DIVISION:
EQUAL OPPORTUNITIES DIVISION

PARTIES:
APPLICANT
LD

RESPONDENTS
Director General, Department of Education and Training
Director, Central Sydney Area Health Service



FILE NUMBERS:
001073

HEARING DATES:
12 September 2008

SUBMISSIONS CLOSED:
12 September 2008



DATE OF DECISION:
27 January 2009

BEFORE:
Hennessy N - Magistrate (Deputy President)





LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Privacy and Personal Information Protection Act 1998

CASES CITED:
State of New South Wales (Justice Health) and another v Dezfouli [2008] NSWADTAP 69
VC and Australian Federal Police (1985) 8 ALD 587
LD v Director General, Department of Education and Training [2002] NSWADT 75
Law Society of New South Wales v M (No.2) [2001] NSWADT 54.
D v Berkeley Challenge Pty Ltd [2001] NSWADT 92 X v Y & anor [2000] NSWADT 122
V v Y & anor [2000] NSWADT 12
R v A & B [1999] NSWADT 151
Z v University of A, Dr D & B (No 4) [2002] NSWADT 14
Fe Ventura v Walt Disney Television Animation Pty Ltd NSWEOT 32 of 1998
Herald & Weekly Times Ltd v Medical Practitioners Board of Victoria (BC9802329, Supreme Court of Victoria, 10 June 1998)

TEXTS CITED:


APPLICATION:
Application for suppression order

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
In person
1ST RESPONDENT
M Rizzo, solicitor

2ND RESPONDENT
J Hennessy, agent


ORDERS:
The 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, the applicant in connection with these proceedings and in connection with the decision in LD v Director General, Department of Education and Training [2002] NSWADT 75 is prohibited.


Reasons for Decision:

REASONS FOR DECISION

Introduction

1 Application for suppression. LD has applied for an order that her name be suppressed in the Tribunal’s reasons for decision - LD v Director General, Department of Education and Training [2002] NSWADT 75. I have granted that application and used the initials "LD" (which are not the applicant’s initials, but merely the next available initials on the Tribunal’s list) both in this decision and when referring to the previous decision.

2 LD is a teacher who complained of presumed disability discrimination under the Anti-Discrimination Act 1977 (AD Act) against the Director-General, Department of Education and Training and the Director, Central Sydney Area Health Service (HealthQuest). In 2002 the Tribunal found that the complaint of discrimination had not been substantiated and it was dismissed. Despite the fact that the Tribunal’s decision was handed down over six years ago the Tribunal still has the power to make a suppression order: Law Society of New South Wales v M (No.2) [2001] NSWADT 54.

3 Summary of reasons for application. LD said that following a recent phone call from a journalist inquiring about her discrimination case, she realised for the first time that the decision was publicly available on the Internet. She strongly objects to her name appearing in the decision and has applied for her identity to be anonymised. Her main reason for making that application is that the decision is available on the Internet for anyone to see and prospective employers may draw negative conclusions about her on the basis of incorrect and/or personal information in the decision. While admitting that she has made allegations of improper, corrupt and fraudulent conduct against the respondents to the Department’s Serious Misconduct Unit, LD denied that she was motivated in making this application by any desire to cause hurt, distress or embarrassment to the respondents or their witnesses. I accept that LD’s application to this Tribunal has been made in good faith.

4 Nature of the hearing. Neither of the respondents made submissions in relation to LD’s application and both said they would submit to any orders except as to costs. LD tendered a statement dated 8 July 2008, an affidavit dated 10 July 2008 and written submissions, all of which I have taken into account. I refused LD permission to issue a summons which she said might reveal that witnesses gave false evidence to the Tribunal. My reason for doing so is set out at [29]. The application was determined "on the papers" in accordance with section 76 of the Administrative Decisions Tribunal Act 1997 (ADT Act). Because the making of orders under section 75 is an "interlocutory function" one judicial member may exercise it: ADT Act, section 24A.

Power to make a suppression order

5 Section 75(2). An order prohibiting or restricting the disclosure of the name or identity of a party to proceedings can be made under section 75(2)(b) of the ADT Act:

(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 (Emphasis added)

Issue

6 The issue is whether any of the reasons given by LD, either alone or in combination, satisfy me that it is desirable to make a non-publication order because of the confidential nature of any evidence or for any other reason.

Legal principles

7 Dezfouli decision. The principles to be borne in mind when making a suppression order were recently discussed by the Appeal Panel in State of New South Wales (Justice Health) and another v Dezfouli [2008] NSWADTAP 69. In that case a forensic patient in Long Bay Hospital alleged that an employee of Justice Health had sexually harassed him. The Appeal Panel made a suppression order in relation to the name of the employee because there was a risk that disclosure of the employee’s surname would:

(a) increase the risk that forensic patients in Long Bay Hospital might employ violence or intimidation against that employee or members of his family outside the Hospital;

(b) lower the morale of other staff at the Hospital by causing them to think that disclosure of their names might occur in the future and that the patient may complain about them to ascertain their surnames; and

(c) adversely affect Justice Health’s activities by making recruitment of new staff more difficult: State of New South Wales (Justice Health) and another Dezfouli [2008] NSWADTAP 69 at [16].

8 Interpretation of section 75(2). The Appeal Panel emphasised at [49] that the focus when interpreting section 75 should be the "actual words" in the provision, not the decided cases or other secondary material. Of prime importance in section 75(2) are the words ‘desirable’, the phrase ‘for any other reason’ and the word ‘may’. The Appeal Panel said at [50] that:

These indicate that the purpose (or purposes) to be served by a suppression order may be ‘any ... reason’ (or reasons) whatever, that the power arises when the Tribunal is satisfied that the order is ‘desirable’ and that the actual making of the order is not mandatory but within the Tribunal’s discretion.

9 Presumption in favour of identifying parties by name. The Appeal Panel went on to say at [51] that the common law power to prohibit or restrict the reporting of matters occurring in open court was "distinctly narrower" than that conferred by section 75(2). However, the Appeal Panel stressed at [58] that it is "beyond doubt that section 75(1) creates a presumption in favour of hearings being both open to the public and freely reportable and that circumstances justifying departure from this presumption must be present if an order is to be made under section 75(2)". The rationale for open justice was succinctly summarised in Herald & Weekly Times Ltd v Medical Practitioners Board of Victoria (BC9802329, Supreme Court of Victoria, 10 June 1998 at 17) by Hedigan J:

The reason for the favouring of open hearings is intimately connected with the conduct of public affairs in a democracy, namely, that it is, as a general principle, in the public interest that disputes between State and citizen, and citizen and citizen, not be tried behind closed doors but so that the work of those appointed to decide, the evidence given by witnesses, and the decisions can be scrutinized by all who care to visit. Since not everyone can visit, citizens in a democracy depend to a substantial extent upon accurate and published reporting of what takes place.

10 The Appeal Panel in Dezfouli at [61] considered that the word ‘desirable’ in section 75(2) should be interpreted having regard to the common law principle of open justice:

What is "desirable" under a statutory provision must be determined in accordance with consistent standards and values, not the particular preferences of a court or tribunal applying the provision. The values that have informed judicial decisions about the issues raised in section 75 have consistently attributed considerable importance to the desirability of hearings being open to the public and fully reportable unless good reasons are advanced for restricting public access and/or full reporting. (Emphasis added)

11 The only qualification to this statement is that we agree with the proposition that the public interest in publishing information about the identity of an applicant is considerably less than the public interest in proceedings being conducted in public: VC and Australian Federal Police (1985) 8 ALD 587 at [18] cited in Dezfouli at [89].

12 Other suppression provisions. Section 126 of the ADT Act prohibits the publication of material disclosing the names or other identifying features of a person involved in certain specified classes of Tribunal proceedings, unless the Tribunal consents. Those hearings include hearings in the Community Service Division where parties are often children or people with disabilities, and hearings involving parties who are subject to guardianship or financial management orders under the Guardianship Act 1997. Again, those people will, almost always, have a disability of some kind. The Appeal Panel in Dezfouli concluded at [59] that the existence of section 126 ". . . impliedly reinforces the principle that, in proceedings outside the specified classes, the publication of such material is prime facie permissible."

13 Practice Notes and policies. That conclusion is further reinforced by Practice Note 13 entitled Publication, Anonymisation and Suppression, which says that in addition to the powers in section 126, it is the Tribunal's general practice to anonymise the name of the applicant in certain types of cases including applications under the Privacy and Personal Information Protection Act 1998 (PPIP Act) where the issue in the proceedings is whether certain agencies have dealt with personal information unlawfully. Publication of the nature of the personal information would undermine the purpose of the PPIP Act. In addition to the provisions in the Practice Note, the general practice in the Equal Opportunity Division is to make suppression orders in relation to the names of children (and their parents) who are parties to proceedings. The combined effect of these provisions and practices is that adult applicants without a disability are generally, but not always, identified by name in proceedings in the Equal Opportunity Division.

14 EOD suppression decisions. There are only a handful of cases where the Tribunal has suppressed the name of an adult applicant in Equal Opportunity proceedings. In some of those cases the reasons for suppression are not articulated, perhaps because the order has been made with the written consent of all parties and the Tribunal has seen no need to provide reasons for its decision. The most common kinds of cases in which the names of the applicant have been anonymised are those involving allegations of sexual harassment. The cases of D v Berkeley Challenge Pty Ltd [2001] NSWADT 92; X v Y & anor [2000] NSWADT 122; V v Y & anor [2000] NSWADT 12; and R v A & B [1999] NSWADT 151 are examples. Apart from the Appeal Panel decision in Dezfouli, referred to above, two reported decisions of which I am aware which canvassed the issue of whether a suppression order should be made are Z v University of A, Dr D & B (No 4) [2002] NSWADT 14 and Fe Ventura v Walt Disney Television Animation Pty Ltd NSWEOT 32 of 1998. In the first case, the Tribunal suppressed the names of the respondents and six other persons for the following reasons summarised by the Appeal Panel in Dezfouli at [74]:

(a) the public airing of serious allegations of impropriety made against the respondents going beyond the Tribunal’s jurisdiction, was likely to damage their reputations severely, causing them greater harm than any harm that might be done to the Applicant;

(b) the Applicant had indicated a desire to cause hurt, distress and embarrassment to many, if not all, the Respondents;

(c) the Applicant’s allegations were not supported by any objective evidence; and

(d) since none of the Respondents, apart from the Respondent University, had played any role in the investigation conducted by the Anti-Discrimination Board, there had been no opportunity, even at an informal level, to test the strength of the many serious allegations made against them: State of New South Wales (Justice Health) and another Dezfouli [2008] N SWADTAP 69 at [74].

15 The Tribunal also suppressed the name of the applicant because serious counter-allegations had been made against him and the respondents did not oppose such an order.

16 In the second case, Fe Ventura v Walt Disney Television Animation Pty Ltd, the Tribunal rejected an application for suppression where the applicant said that her 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. This decision was made pursuant to section 110A of the Anti-Discrimination Act 1977, now repealed, which required a finding that the person might be adversely affected by being identified.

17 Summary of conclusions in Dezfouli. The Appeal Panel summarised its main conclusions as to the manner in which section 75(2) should be interpreted at [81]:

It is difficult if not impossible to set out in short form all the matters that, according to the case law just discussed, should be taken into account in deciding whether an order should be made under section 75(2). It must suffice here simply to draw attention to the following points of relevance to our decision in this case: (a) the presumption in favour of open justice; (b) the need for an applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of ‘desirability’; (d) the important differences between the types of suppression order that may be made – between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served (‘any other reason’); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) the possibility that, although generally speaking the prospect of damage to reputation or ‘embarrassment’ affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order.

Reasons for applying for a suppression order

18 Summary. The reasons LD gave for applying for a suppression order under section 75(2)(b) were both that the nature of some of the evidence was confidential and for "other reasons." Her objections to her name being associated with the decision can be divided into three categories:

(a) the references in the decision to her mental health and complaints that she had abused children;

(b) that the Tribunal recorded incorrect evidence and made incorrect findings of fact; and

(c) the harm the evidence and findings had caused her and her children including distress, embarrassment, loss of reputation and potential financial loss.

19 References to mental health and abusing children. LD said that some of the Tribunal’s findings suggest that she is mad or that she was mad in 1997 and that she abused children. LD also objected to the Tribunal referring to evidence that she had an anxiety and nervous disorder in 1984. The Tribunal recounted the evidence in relation to LD’s mental health and complaints that she abused children at [53] to [60] and [63]:

53 Ms McDiarmid stated that she had taken other issues into consideration when making her decision to send LD to HealthQuest. Ms McDiarmid examined LD's personnel records, and saw that LD had had a considerable amount of time off work for anxiety and a nervous disorder. Further, a letter from LD to Ms Maguire dated 1 December 1984 stated that LD had "very severe anxiety" and that she would "see the GMO (Government Medical Officer) if required". This letter was tendered.

54 Ms McDiarmid stated that LD was directed to attend HealthQuest pursuant to section 12 of the Teaching Services (Education and Teaching Service) Regulation 1994.

55 LD was examined on 3 July 1997 by Dr Pasfield, a psychiatrist. His report indicated that clinically LD did not present with a psychiatric disorder. However, HealthQuest requested further information from the Department of Education on 14 July 1997.

56 LD gave evidence that she had been previously examined by Dr Schlebaum, a general practitioner, on 11 June 1997. The certificate of fitness from this doctor was tendered.

57 LD also stated that she had been examined by a psychiatrist in Bathurst, Dr Nanette Waddy, who said that she was fit to return to work, and who had phoned Ms Anderson to express that view while LD was present. No report was tendered from Dr Waddy.

58 On 24 July 1997 LD, at the direction of HealthQuest, saw a psychologist Mr Hadi Stambouliah. LD gave evidence that he told her that she would be able to return to work. However, his report indicates that she was not fit to return to teaching.

59 Ms McDiarmid gave evidence that she received further complaints in July 1997 about LD's teaching. The complaints alleged that LD had verbally abused children, and caused them considerable stress. These complaints were tendered.

60 On 7 August 1997 HealthQuest issued a retirement certificate, also tendered, stating that LD was suffering from a cognitive dysfunction and was unable to discharge the duties of her office, and her disability would prove permanent.

. . .

63 LD appealed the HealthQuest decision to the Medical Appeals Panel, and on 29 January 1998 it advised that LD's appeal had been upheld. . .

20 LD submitted that there are privacy laws in NSW and international conventions relating to privacy to which Australia is a signatory but that by publishing decisions on its website the Tribunal does not appear to be subject to those laws. LD also submitted that the Tribunal did not highlight the fact that the Medical Appeals Panel upheld her appeal against HealthQuest’s decision that she was unfit for work because of a cognitive dysfunction. Rather, it proceeded as if she had not successfully appealed against that decision.

21 Incorrect evidence and findings. LD said that at least two witnesses gave evidence that was not true. She alleged that one had committed perjury. She also said that the Tribunal accepted evidence which was not corroborated, that the Tribunal overlooked positive evidence about her and recorded negative evidence which was not relevant. Details of this evidence and the Tribunal’s findings are contained in LD’s statement and affidavit. She attached documents in support of her claims. LD acknowledged that she did not appeal against the Tribunal’s decision despite being legally represented before the Tribunal and said that "if the Tribunal wishes to make public findings based on flimsy evidence and hearsay, it is the Tribunal’s exclusive legal right to do so, as long as my good name is not attached to those findings and my reputation and quiet enjoyment of life are not destroyed by them."

22 Harm done and potential harm. As well as causing her and her children distress and embarrassment LD said that the publication of the decision on the Internet has affected her reputation and has meant that employment offers have been delayed or not made. She claims that when she applied to the Catholic Education Office for employment in 2004, they were reluctant to employ her because of the Tribunal’s findings. She says she was questioned for an hour by a legal officer before having her employment approved some months later. LD believes that other potential employers have read the Tribunal’s decision on the website and have decided not to employ her as a casual relief teacher. If a prospective employer reads the Tribunal’s decision on the Internet, she said that he or she might have doubts about her soundness of mind and refuse her employment on that basis. Finally, LD submitted that material on the Internet can easily be copied and pasted into emails and distributed widely. She feared that if anyone wished to do her harm, distributing the Tribunal’s decision by email would be an ideal method of destroying her life and reputation.

Reasoning and conclusion

23 Introduction. Keeping in mind the principles referred to above, I must determine whether any of the matters referred to by LD, either alone or in combination, satisfy me that it is desirable to make a non-publication order by reason of the confidential nature of any evidence or for any other reason. I acknowledge LD’s point that the advent of the Internet has meant that the Tribunal’s decisions are readily available to any member of the public who has access to a computer. That is a major change from the days when a person needed to go to a law library or to the Tribunal Registry to access decisions.

24 References to mental health and abusing children. In relation to the references to mental health and abusing children in the decision, three points need to be made. Firstly, the manner in which the Tribunal exercises its judicial functions, including the hearing and determination of proceedings, is exempt from the provisions of the PPIP Act by virtue of section 6. The policy reason behind that exemption is the principle of open justice: Scott v Scott [1913] AC 417; Russell v Russell [1976] HCA 23; (1976) 134 CLR 495; Herald & Weekly Times Ltd v Medical Practitioners Board of Victoria (BC9802329, Supreme Court of Victoria, 10 June 1998 at 17). Similarly, Article 17 of the International Covenant on Civil and Political Rights, which relates to privacy, is not itself part of Australian law and does not directly bind the Tribunal. There is often a need to strike a balance between apparently conflicting rights. In section 75, parliament has struck that balance by creating a presumption in favour of open justice while allowing privacy and other considerations to override that principle when it is ‘desirable’ to do so.

25 The second point is that the Tribunal did not find that LD was suffering from any disability relating to her mental functioning. In fact, the Tribunal said specifically when making findings of fact at [71] that:

The Tribunal has not canvassed the contradictions in evidence between HealthQuest doctor’s reports and LD's evidence, because the decision on fitness to continue working has been made by the Medical Appeals Tribunal.

26 The Tribunal also emphasised in its conclusion at [89] that, "The decision of the second respondent (HealthQuest) was wrong, but this was rectified by the Medical Appeals Panel." Despite the fact that the Tribunal made no adverse finding about LD’s mental health, I understand her concern that the decision records a finding by Mr Hadi Stambouliah that she was suffering from a cognitive dysfunction. That concern is heightened because of her understanding that he was "in trouble" over the report he wrote for HealthQuest. In relation to the complaints that LD had abused children, the Tribunal merely recorded that such complaints had been made. It made no findings about the truth or otherwise of those allegations. Again, I appreciate LD’s concern that people reading the Tribunal’s decision may assume that the complaints were justified.

27 The third point is that the references to LD’s mental health, to her having had time off work in 1984 for anxiety and to complaints that she abused children were relevant to the Tribunal’s determination as to whether the treatment in referring LD to HealthQuest constituted discrimination. It was not gratuitous information. The strength of the allegations she was making against the respondents needed to be tested. While it is not the Tribunal’s practice to publish unnecessary personal information about a party or a witness, the information published by the Tribunal about LD was directly relevant to its decision. That information is personal information, but the nature of proceedings in the Equal Opportunity Division is almost always such that personal information will be relevant to the Tribunal’s decision and will be disclosed in its reasons unless a suppression order is made.

28 Despite these considerations, the Tribunal has recorded sensitive personal information about LD in the decision and LD understandably objects to this information being publicly available. As I have said, the public interest in publishing information about the identity of an applicant is considerably less than the public interest in proceedings being conducted in public: VC and Australian Federal Police (1985) 8 ALD 587 at [18] cited in Dezfouli at [89]. This Tribunal has a policy of not publishing the names of applicants when personal information is the subject of proceedings under the PPIP Act. While there is no justification for such a policy in every case in the Equal Opportunity Division, where the decision contains sensitive personal information as it does in this case and where the applicant wishes to have their identity anonymised it may be desirable to do so.

29 Incorrect evidence and findings. There is no limitation on the reasons which may justify a suppression order, but the fact that the Tribunal has recorded evidence or made findings which are later shown to be false is not the kind of reason which would generally make it desirable to grant a suppression order. There are other more appropriate and desirable mechanisms for correcting such errors including appealing against the decision or instituting proceedings for perjury. If the Tribunal had gone about the fact finding process in a manner which was unfair or unorthodox, LD could have sought leave to appeal against the merits of the Tribunal’s decision: ADT Act, section 113 and K v K [2000] NSWSC 1052 per Young J at [15]. LD has made it clear that she chose not to pursue that option. An application under section 75 should not be used so that a collateral inquiry into the merits of the Tribunal’s decision can be conducted. I do not consider it desirable for LD’s name to be suppressed so that she is not associated with evidence or findings with which she disagree. This conclusion means that it was unnecessary for LD to summons documents to establish that witnesses gave false evidence to the Tribunal.

30 Harm done and potential harm. Finally, in relation to the harm that LD says the publication of the Tribunal’s reasons has done or may lead to in the future, I understand and appreciate that LD is distressed by the fact that the Tribunal’s decision is available on the Internet. I can also understand that her children may be embarrassed by the fact that the state of their mother’s mental health has been publicly aired. Despite these concerns, courts and tribunals have consistently valued open justice over embarrassment or damage to reputation: Z v University of A, Dr D & B (No 4) [2002] NSWADT 14 at [16]; Lawrance v Commonwealth of Australia & Ors [2006] FMCA 1792 at [56]). In addition, I am not persuaded that the presence of the decision on the Internet has meant that LD was not offered a position as a casual teacher or that she will not be offered such a position in the future. The Catholic Education Office offered her a position in 2004 and she says she has been working as a casual relief teacher for the last four years.

31 In my view, LD’s concern that a person could destroy her life and her reputation by distributing material on the Internet to others is improbable. LD became aware very recently that the decision had been on the Internet for over six years. No one had mentioned to her that the decision was on the Internet in all that time, nor has LD been subjected to any such campaign.

32 Conclusion. Although the majority of the reasons LD put forward do not justify a suppression order, the references to her mental health make it desirable for a non-publication order to be granted. These references relate to sensitive personal information about her which may or may not be accurate. These are civil proceedings made pursuant to beneficial legislation. People should not be discouraged from making complaints because of concerns that sensitive personal information about their mental health will be disclosed. The principles of open justice are not unduly restricted by suppressing LD’s name. The hearing was open to the public and the process and outcome of LD’s application to the Tribunal remain on the public record.

Order

33 As I am satisfied that it is desirable to make an order because of the sensitive personal information in the decision, though not on the other grounds relied on by LD, I make the following order:

The 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, the applicant in connection with these proceedings and in connection with the decision in LD v Director General, Department of Education and Training [2002] NSWADT 75 is prohibited.