Fraser-Kirk v David Jones Limited [2010] FCA 1060

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

The text of entered orders can be located using Federal Law Search on the Court's website.

1. The present proceeding was commenced by the Applicant by way of an Application and a Statement of Claim filed on 2 August 2010. "Sexual misconduct" is alleged against the Second Respondent whilst he was the Chief Executive Officer of the First Respondent, David Jones Limited ("David Jones"). The Third to Tenth Respondents were at all times directors of the First Respondent. The Eleventh Respondent is said to have been at all relevant times "a member of the senior management team" of the First Respondent.
2. The claims for relief being advanced are claims made pursuant to:
   • the Trade Practices Act 1974 (Cth) and/or the Fair Trading Act 1987 (NSW) (paras [57] to [71]);
   • a claim in contract (paras [72] to [74]);
   • claims in tort for an alleged breach of a duty of care on the part of both David Jones and the Second Respondent and in trespass as against the Second Respondent alone (paras [75] to [79];

1. The proceeding has attracted some considerable degree of media attention, both nationally and internationally.
2. The proceeding first came before the Court for directions on 30 August 2010. On that occasion an application to amend was foreshadowed. All parties were then urged to confine their submissions and comments to the Court to such matters as were relevant to the issues to be resolved. Concern was then expressed that care should be exercised when making submissions to the Court not to make statements which were more in the nature of a "media release" than a submission which provided genuine assistance to the Court as to how the proceeding could properly be case-managed and the interests of all parties protected.
3. An Amended Statement of Claim was in fact filed on 10 September 2010. The effect of those amendments was essentially to:
   • raise a further allegation as against the Second Respondent of "sexual misconduct" in respect of another employee whilst he (the Second Respondent) was at David Jones (para [39A]);
   • allege that David Jones had "acknowledged that the sexual harassment had occurred and provided an assurance to those employees that it would improve its systems for addressing and/or preventing sexual harassment in its work force" (paras [40A] to [40C]);
   • raise further allegations as against the Second Respondent of "previous sexual harassment .... at another workplace" (paras [40D] to [40G]); and
   • raise further allegations in support of the claim for punitive damages (para [82(d) and (e)], referring by way of particulars to paragraphs [40A] to [40C] and (inter alia) paragraphs [40D] to [40G] respectively).

The only reliance placed by the Applicant upon the conduct the subject of the allegations in paragraphs [40D] to [40G] is as a particular to a claim in paragraph [82] of the Amended Statement of Claim where punitive damages are sought "in respect of the torts pleaded at 75 to 79 above...". Paragraph [83] claims punitive damages as against David Jones and paragraph [84] claims punitive damages as against the Second Respondent. Although the Amended Statement of Claim is properly susceptible of a construction that paragraphs [40D] to [40G] were relied upon as against both David Jones and the Second Respondent, Counsel for the Applicant maintained on 23 September 2010 that paragraphs [40D] to [40G] were only relied upon to support a claim for punitive damages as against the Second Respondent. Even so confined, the relevance of those allegations to the claim for punitive damages was not self-evident. But no application was made by the Second Respondent to have paragraphs [40D] to [40G] struck out. Their relevance can thus be left to the final hearing.

1. Once filed, the Amended Statement of Claim thereafter became available to the public. Such was the operation of Order 46 r 6 of the Federal Court Rules. That rule provides that "an application or other originating process" is available for public inspection at a Registry of this Court "unless the Court, or a Judge, has ordered that the document is confidential". No order was sought or made.
2. Other than the Application and the Amended Statement of Claim naming (self-evidently) the Applicant, there has been no disclosure of the names of the other persons said to have been the subject of the Second Respondent's conduct. The consequence of filing the Amended Statement of Claim was that the full extent of the nature of the allegations being made, in particular as against the Second Respondent, became publicly available; but the identity of those persons the subject of the alleged conduct of the Second Respondent was withheld.
3. Now in issue is (primarily) the identity of a number of persons. The manner in which these persons have been identified to date is by simply referring to them (for example) as "Employee Number One" or as "a David Jones Manager" or as a "non-employee". Those paragraphs of the Amended Statement of Claim, and a brief outline of the allegations made, may be extracted as follows:

"... another incident at a 2009 Caulfield Cup function, of an apparently similar nature, involving McInnes, and another female employee of David Jones (Employee Number Two) which she, Kelly, [the David Jones Public Relations General Manager] had been required to deal with through Employee Number Two's mother."

"At a David Jones function at the Caulfield Cup in Melbourne in October 2009... McInnes made an unwelcome sexual advance to Employee Number One by pulling her into a lingering hug, pulling her closely to him and kissing her on her neck. This was not the 2009 Caulfield Cup incident referred to by Kelly at 14(b) above..."

"Between November 2009 and April 2010 Employee Number Three received numerous text messages of an unwelcome sexual nature from McInnes ..."

"In December 2009 McInnes, made an unwelcome sexual advance to Employee Number Four at the company Christmas function."

"In 2009 Mr McInnes engaged in unwelcome conduct of a sexual nature towards Employee Number Six by commencing to regularly visit her work area, attempting to engage her in flirtatious conversations and by sending her text messages seeking, among other things, that she attend his Bondi home."

"Following the sexual harassment of a number of David Jones employees (Past Employees Two, Three and Four) through criminal conduct by a David Jones Manager, David Jones acknowledged that the sexual harassment had occurred and provided an assurance to those employees that it would improve its systems for addressing and/or preventing sexual harassment in its workforce."

"[Between 1989 and 1991], Black and Decker Manager Number One had cause to counsel Mr McInnes on up to ten occasions concerning his inappropriate behaviour, language and approach towards women."

"During 1990 Blacker & Decker Employee Number One worked as a 19 year old secretary assisting Mr McInnes at Black & Decker. Mr McInnes made unwelcome sexual advances to Black & Decker Employee Number One as follows..." [Four "incidents" are then set forth]

"Black & Decker Employee Number Two worked as a Marketing Services Co-ordinator for Black & Decker at the time that Mr McInnes worked in the Marketing Department. Mr McInnes made unwelcome sexual advances to Black & Decker Employee Number Two as follows:..."

Two "incidents" of such "advances" are then provided.

"Prior to his appointment as CEO of David Jones, McInnes had been reported to the previous CEO of David Jones for his bullying aggression via screaming abusive and foul language ("Past Employee One 1999 Report"). That bullying approach was continued by McInnes and later adopted by certain of his management. This led to a reluctance by employees to raise concerns about management conduct, including the McInnes sexual misconduct (that reluctance exhibited by the Applicant, Employee Number One, and Employee Number Four)."

As a particular to an allegation that "there was a culture of sexual harassment at David Jones" Particular (b) states : "On 11 June 2010 a 19 year old woman who was not an employee of David Jones (the "Non-Employee") was sexually harassed and assaulted at a David Jones Store by a 40 year old David Jones employee. This incident was notified to David Jones management on 11 June 2010."

For whatever reason, there is no "Employee Number Five". The employees identified in paragraph [40A] as "Past Employees Two, Three and Four" are persons different to those presently identified as "Employees" numbered two, three and four. The necessity to provide particulars, it should be expressly noted, extends beyond the naming of the "employees"; it extends to (for example) the naming of the "David Jones Manager" in paragraph [40A] said to have engaged in "criminal conduct".

1. The proceeding was re-listed before the Court for 23 September 2010 at the instance of the First and Third to Eleventh Respondents. The reason for this became quickly apparent.
2. Prior to 23 September 2010 the legal advisers to the Applicant had declined to disclose to any of the Respondents the names of any of those persons otherwise unnamed in the Amended Statement of Claim. The refusal to do so was on account of the legal advisers to the Respondents not being willing to provide an undertaking in the particular form sought by the Applicant. Upon the undertaking sought being provided, the Applicant was prepared to disclose the names - but not otherwise.
3. On 30 August 2010 an order had been made requiring (inter alia) Defences to be filed by 24 September 2010. Without knowing the names of the persons simply identified (for example) as a numbered "employee", the Respondents were effectively being asked to make a guess as to the identity of the persons involved. In such circumstances, it was not possible for any of the Respondents to file meaningful Defences by the date previously ordered.
4. When the proceeding was before the Court on 23 September 2010, an order was then made for the provision of the names of those persons otherwise not named in the Amended Statement of Claim (excluding the three persons referred to in [40A]) upon an undertaking being given by Counsel for the Respondents and their legal advisers that the names would not be disclosed, even to their clients. The names of the three persons referred to in paragraph [40A] were not made known by the Applicant, even to the legal advisers to the Respondents. Given the undertaking then being given, such a course was highly unusual.
5. Defences have now been filed. The course pursued by the Second Respondent in the Defence filed on 24 September 2010 (for example) is, not surprisingly, to say that he either denies a particular allegation or that he "cannot plead" to an allegation due to the fact that the pleading "has a tendency to cause prejudice and embarrassment or delay in the proceedings". Amended Defences will necessarily have to be filed in due course.

1. To formalise the position being adopted by the Applicant, a direction was made on 23 September 2010 for the filing of a Notice of Motion identifying the relief sought.
2. That Notice of Motion was filed on 24 September 2010. An Amended Notice of Motion was thereafter filed in Court on 27 September 2010, the effect of which was to vary the Confidentiality Undertaking previously sought to be imposed by the Applicant. The relief sought was (in part) as follows:
   1. That the Respondents' application pursuant to Order 10 Rule 1 and/or Order 12 Rule 5 of the Federal Court Rules for an order requiring the Applicant to give particulars of the Amended Statement of Claim (ASOC) which will disclose the identities of the persons currently named by pseudonyms in the ASOC be granted:

(a) except in relation to the persons identified in paragraph 40A of the ASOC; and

(b) on the condition that the solicitors acting for the Respondents give confidentiality undertakings with respect to that information in the form annexed to these orders and marked "Confidentiality Undertaking".

1. Upon executed copies of those confidentiality undertakings being filed with the Court and served on the solicitors for the Applicant, the solicitors and counsel for the Respondents be released from the undertakings given to the Court on 23 September 2010.
2. That the solicitors for the Applicant notify the solicitors for the Respondents within 14 days whether there is witness consent to the disclosure of the identities of the persons referred to in paragraph 40A of the ASOC if the confidentiality undertakings referred to in order 1 above are given.
3. Until further order, the persons currently named by pseudonyms in the ASOC be referred to in any Defence or other pleading or document filed in the proceedings by the same title as used in the ASOC and not by name or other description or title that could identify them.

An alternative form of order is sought in the event that order 1 is not granted.

1. It is the hearing of that Amended Notice of Motion which is now before the Court.
2. There is no question but that the Applicant has to disclose the names of the persons who have to date remained unnamed. There is thus no question but that the request for particulars as to the identity of those persons must be complied with. Devoid of proper particulars, the Amended Statement of Claim would have "a tendency to cause prejudice, embarrassment or delay in the proceeding" or be an "abuse of the process of the Court". In the absence of proper particulars being provided, such an unparticularised pleading can be - and should in the present proceeding - struck out pursuant to Order 11 r 16 of the Federal Court Rules.
3. Counsel for the Applicant did not contend to the contrary.
4. The only question to be considered is whether any order should be made as sought in the Amended Notice of Motion.
5. An opportunity had been sought on 23 September 2010 by Counsel on behalf of the Applicant to file evidence in support of her claim that particulars could not or should not be provided without an order of this Court in the form now proposed. On 24 September 2010 a number of affidavits and three volumes of materials were sought to be filed by the Applicant. As the Respondents had not been given any opportunity to consider this material, the proceeding was adjourned to Monday 27 September 2010.
6. In support of the Amended Notice of Motion, the Applicant at the resumed hearing on 27 September 2010 relied upon the following evidence:
   • an affidavit of Ms Louise Morrow affirmed on 23 September 2010; and
   • two volumes of materials, being marked on that occasion as Exhibits A1 and A2 on the Motion.

Counsel on behalf of the First and Third to Eleventh Respondents, relied upon:

• an affidavit sworn by Ms Sally Woodward sworn on 27 September 2010; and
• one volume of materials, marked then as Exhibit R1 on the Motion.

No additional evidence was relied upon by the Second Respondent.

1. Those provisions of the Federal Court of Australia Act 1976 (Cth) and the Federal Court Rules to which reference was made during the course of the hearing of the Amended Motion should be briefly mentioned.
2. It is the proper ambit and interrelationship between one or other of those provisions which was the subject of submissions. Given the desirability of resolving the present dispute expeditiously, such attention as may otherwise have been given to these provisions and the submissions has not been possible. But, in any event, detailed consideration has not proved necessary to resolve the issue now before the Court.
3. Reference was made by the parties to ss 17, 37M and 50 of the Federal Court of Australia Act.
4. Section 17 provides as follows:

Exercise of jurisdiction in open court and in Chambers

(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.

(2) The jurisdiction of the Court may be exercised by a Judge sitting in Chambers in:

(a) a proceeding on an application relating to the conduct of a proceeding;

(b) a proceeding on an application for orders or directions as to any matter which, by this Act or any other law of the Commonwealth, is made subject to the direction of a Judge sitting in Chambers; and

(c) a proceeding on any other application authorized by the Rules of Court to be made to a Judge sitting in Chambers.

(3) A Judge may order a proceeding in Chambers to be adjourned into 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.

This provision, it has been said, gives statutory force to the principle that justice must be administered publicly and in open court: Australian Broadcasting Commission v Parish [1980] FCA 33; (1980) 43 FLR 129 at 132 per Bowen CJ. His Honour there relevantly observed:

This Court is a court established by statute. It is clear from s. 17(1) of the Federal Court of Australia Act 1976 that in general it is obliged to exercise its jurisdiction in open court. This provision gives statutory force to the principle that justice must be administered publicly in open court and gives recognition to the weight of public interest which attaches to that principle.

However, s. 17(4) and s. 50 provide for encroachment upon that principle. Under s. 17(4) the public or some of the public may be excluded where the court is satisfied their presence would be "contrary to the interests of justice". We are all familiar with cases where this would be so. Thus, it is common to exclude persons who are to give evidence, lest they be led to trim their evidence. Again, where demonstrators or rioters would disrupt the proceedings, it may be in the interests of justice to exclude them. The categories of cases where exclusion will be proper are not closed. It will lie in the discretion of the judge, bearing in mind the injunction contained in s. 17(1) and taking into consideration the interests of justice referred to in s. 17(4).

His Honour thereafter went on to address s 50. See also Deane J at 156 to 157.

1. Section 37M provides as follows:

The overarching purpose of civil practice and procedure provisions

(1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:

(a) according to law; and

(b) as quickly, inexpensively and efficiently as possible.

(2) Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:

(a) the just determination of all proceedings before the Court;

(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c) the efficient disposal of the Court's overall caseload;

(d) the disposal of all proceedings in a timely manner;

(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

(3) The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.

(4) The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:

(a) the Rules of Court made under this Act;

(b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Court.

This section was recently inserted by way of amendment by the Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth). It is, it has been said, a section to be interpreted and applied to civil practice and procedure "in a way that best promotes the overarching purpose of civil practice and procedure. This includes among other things; justice between the parties and the efficient use of the judicial and administrative resources of the Court": Mijac Investments Pty Ltd v Graham [2010] FCA 896 ("Mijac Investments") at [8] per Marshall J.

Prohibition of publication of evidence etc.

(1) 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.

(2) This section does not limit section 23HC.

Section 23HC has no relevance to the present proceeding. But the power conferred by s 50 is strictly confined to those circumstances in which it appears to the Court that an order is "necessary ... to prevent prejudice to the administration of justice ...".

1. "Open justice", it has been said, "is the underlying assumption of s 50": P v Australian Crime Commission [2008] FCA 1336 at [55], [2008] FCA 1336; 71 ATR 555 at 565 per Emmett J. And, in that context, the word "necessary" is a "strong word": Hogan v Australian Crime Commission [2010] HCA 21 at [30], [2010] HCA 21; 240 CLR 651 at 664 per French CJ, Gummow, Hayne, Heydon and Kiefel JJ.
2. An application seeking the non-publication of names in another claim alleging sexual harassment has recently been considered by a Full Court of this Court in Dye v Commonwealth Securities Ltd [2010] FCAFC 115. An order was there made prohibiting the disclosure of the name of a female but not a male until further order. Subsequent consideration led to the order in respect to the female being changed such that her name too was not to be suppressed: Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 ("Dye (No 2)"). In that case it was the former employer of the appellant who was seeking the suppression order. In resolving the claim, the Full Court there concluded:

[120] The vice of CommSec's submissions is their failure to identify a jurisdictional foundation for how any such order falls within the power of the Court in the circumstances. They referred to the High Court's decision in Hogan v Australian Crime Commission [2010] HCA 21; (2010) 267 ALR 12 asserting that s 50 of the Federal Court of Australia Act requires the Court to determine that an order to suppress a name or evidence must be necessary with respect to the administration of justice and "... is not concerned with trivialities". CommSec asserted that the allegations were "scandalous, untested ... and of a deeply personal and private nature". That was the very argument rejected in Scott v Scott [1913] AC 417; Dickason [1913] HCA 77; 17 CLR 50; R v Hamilton [1930] NSWStRp 21; (1930) 30 SR (NSW) 277; Llewellyn v Nine Network Australia Pty Ltd (2006) 159 FCR 293 at 298-299 [28], 300 [35]-[37] per Rares J; see too McPherson v McPherson [1936] AC 177.

[121] The principle of open justice operates on the premise that all the material placed in evidence before a court and on which, in open court, it is asked to act is open to public scrutiny. That is because publicity itself has the purposes of both informing the public of how judicial power is exercised and ensuring that the courts are accountable for the use of that power entrusted to them. Administrative power can be, and frequently is, exercised in secret. Judicial power almost never is and, when it is, the departure from the ordinary mode of trial must be demonstrated to be necessary in the interests of justice.

1. The provisions of the Federal Court Rules to which reference was made were Order 10 r 1, Order 12 r 5 and Order 46 r 6.
2. Order 10 r 1 provides as follows:

Directions hearing - general

(1) On a directions hearing the Court shall give such directions with respect to the conduct of the proceeding as it thinks proper.

...

(2) Without prejudice to the generality of subrule (1) or (1A) the Court may -

...

(xii) the giving of particulars;

...

Order for particulars

(1) The Court may order a party to file and serve on any other party:

(a) particulars of any claim, defence or other matter stated in his pleading, or in any affidavit ordered to stand as his pleading;

(b) a statement of the nature of the case on which he relies; or

(c) where he claims damages, particulars relating to general or other damages.

(2) Without limiting the generality of subrule (1), where a party alleges as a fact that a person had knowledge or notice of some fact, matter or thing, the Court may order that party to file and serve on any other party:

(a) where he alleges knowledge, particulars of the facts on which he relies; and

(b) where he alleges notice, particulars of the notice.

(3) The Court shall not make an order under this rule before the filing of the defence unless, in the opinion of the Court, the order is necessary or desirable to enable the respondent to plead or for some other special reason.

1. By its terms, r 5(1) confers power to make an order for the filing and service of particulars. Rule 5(2) provides instances of the kinds of orders that may be made. Rule 5(3) is a constraint upon when the power to order particulars is to be exercised. The rule is not an exhaustive statement of the powers of the Court: W R Carpenter Holdings Pty Ltd v Commissioner of Taxation [2006] FCA 1252, 234 ALR 451. Lindgren J there accepted that the Court has an "implied power" to order (for example) particulars of a document which may not constitute a "pleading" within the meaning of r 5(1)(a): [2006] FCA 1252 at [36], [2006] FCA 1252; 234 ALR 451 at 459.
2. And, finally, Order 46 r 6 provides in part as follows:

Inspection of documents

(1) A person may search in the Registry for, and inspect, a document in a proceeding that is specified in subrule (2), unless the Court, or a Judge, has ordered that the document is confidential.

(2) For the purposes of subrule (1), the documents are:

(a) an application or other originating process;

(b) a notice of appearance;

(c) a pleading or particulars of a pleading;

(d) a notice of motion or other application;

(e) a judgment;

(f) an order;

(g) a written submission;

...

(m) a statement of agreed facts;

(n) reasons for judgment.

(3) Except with the leave of the Court or a Judge, a person who is not a party to a proceeding must not inspect any of the following documents in the proceeding:

(a) an affidavit (other than an affidavit mentioned in subparagraph (2)(l)(i));

...

(4) Except with the leave of the Court or a Judge, or with the permission of the Registrar, a person who is not a party to a proceeding must not inspect any document in the proceeding that is not referred to in subrule (2) or (3).

1. In commenting upon this rule, and the central role it serves in ensuring particular documents are available for public inspection, Rares J in Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836, 154 FCR 293 ("Llewellyn") observed:

[22] Significantly, the rules of the Supreme Court of New South Wales are not the same as those in O 46, r 6. That Court had a rule in Supreme Court Rules 1970 (NSW), Pt 65, r 7, which provided that:

A person may not search in a registry for or inspect any document or thing in the proceedings without the leave of the Court.

[23] This Court has clearly taken a very different approach in its rule and has not left it to the parties to keep confidential that which has at least been relied on as the process by which proceedings in this Court are initiated. Parties know that when they file in this Court the rules provide that applications and pleadings are, unless the court orders they be kept confidential, available for inspection. If there is a reason at the time of the filing of documents that any such document, ought not be available for inspection, O 46, r 6(1) provides a means for it to be kept confidential. The need for that exceptional course ought to be established on evidence at the time it is filed. Of course there may be cases of urgency or necessity where it is not always possible to do so and the Court is able, pursuant to its inherent powers and the powers under s 50 of the Act, to accommodate such situations. No such situation was made apparent in this case.

There in issue was whether an Application and Statement of Claim should remain "confidential" and not available for inspection pursuant to Order 46 r 6. His Honour concluded that the documents should be available for inspection.

1. The interrelationship between ss 17 and 50 and Order 46 r 6 was also explored by Siopis J in Y v University of Western Australia [2006] FCA 466, 151 FCR 322 ("Y"). Access had there been sought to material in another case involving sexual harassment claims. His Honour referred to s 17(1) and (4) and an earlier decision of the Full Court of this Court as follows:

[18] These sections give effect to a fundamental democratic principle of open justice which requires that the Court's work is done in public and be subject to the scrutiny of the public.

[19] The question of whether damage and embarrassment and considerations of confidentiality and privacy could found the basis for the making of a suppression order was considered recently by the Full Court in the case of Herald & Weekly Times Ltd v Williams [2003] FCAFC 217; (2003) 130 FCR 435.

[40] As to the wider argument by Senior Counsel for the University that the failure to suppress the names of the complainants may lead to persons in general being less likely to report sexual harassment, this is a variant of the argument founded on the potential for embarrassment of a party or a witness by the disclosure of that person's name. As mentioned, the extent to which embarrassment and distress may lead to the making of a suppression order under s 50 of the Act, in any proceeding, must be assessed by reference to the application of the principles in Williams, to that proceeding. In other words, the question of whether to make a suppression order under s 50 of the Act is not to be assessed by reference to broad public policy considerations, but by reference to the extent to which, on the evidence, the administration of justice may be prejudiced in any specific proceeding by not making the order. As stated at [24], it is established on the authorities that embarrassment, standing alone, is not sufficient for the making of an order under s 50 of the Act.

1. Earlier, in Hadid v Lenfest Communications Inc (1996) 70 FCR 403 at 409, Hill J had observed:

... Further, the "prejudice" of which s 50 speaks is overall prejudice and the "administration of justice" refers to the administration of justice generally. Thus where s 50 applies, the interest of the parties, the effect disclosure of confidential material may have, and the advantages or disadvantages which an order under the section may bring with it, are weighed against the public interest in open justice to determine whether on balance an order should be made. The task is not greatly different from that involved in determining appropriateness where the power is enlivened by s 23. All of the matters which s 50 makes relevant will, of necessity, be required to be considered in defining appropriateness ...

The "public interest in open justice" is there again a matter expressly referred to.

1. The Amended Notice of Motion in the present proceeding relevantly seeks an order that any order that may be made as to the provision of particulars be only made "on the condition that the solicitors acting for the Respondents give confidentiality undertakings" in a specified form.
2. One matter should be noted at the outset. Had the names of the women concerned been included in the Amended Statement of Claim as filed, and in the absence of any order of this Court to the contrary, those names would have been available to anyone who invoked the right conferred by Order 46 r 6(2) of the Federal Court Rules. The fact that that may have occasioned "embarrassment" would have been no reason for the names not to have been disclosed; that is but a consequence of the open administration of justice: John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131. Kirby P, as His Honour then was, there observed at 142 to 143:

It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms: ... A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice. ... [citations omitted]

1. Notwithstanding these observations and the decisions in Llewellyn, Y and Dye (No 2), Counsel for the Applicant contended that the source of the power to impose the condition envisaged by the Amended Notice of Motion was to be found within Order 10 r 1 and/or Order 12 r 5 of the Federal Court Rules.
2. If the present hearing of the Amended Motion could properly be characterised as a "directions hearing" at which a direction was now being given for the provision of particulars, Counsel for the Applicant contended that the condition was said to be a "proper" condition to impose for the purposes of Order 10 r 1; if the present hearing was the occasion for ordering the Applicant to provide particulars, the imposition of the condition was said to be authorised by Order 12 r 5. Although there was some degree of uncertainty, the primary way (if not the only way) in which the Applicant claimed relief was in reliance upon Order 10 r 1. Those rules_,_ it was contended, were to be informed in part by reference to s 37M of the Federal Court of Australia Act rather than by reference to s 50. In particular, it was understood that the power to now make the order sought was contended to be "just" within the meaning of s 37M(1). What order may be made in respect to the names of witnesses or evidence to be given at the hearing, and what order was then "necessary to prevent prejudice to the administration of justice" for the purposes of s 50, Counsel for the Applicant contended were questions to be resolved at a later date. Her written submissions thus state in part:

The orders sought affect the manner in which information is being provided between the parties. No order is yet sought to alter the principles of open justice in relation to the hearing of the proceedings. That is a question for another day.

The stage of the proceeding at present, it was contended, was well in advance of any final hearing and principles different to those set forth in s 50 were said to be applicable. The earlier decisions referred to, Counsel contended, were concerned with the making of orders under s 50 and did not preclude the relief now sought.

1. No reliance was sought to be placed by the Applicant upon either s 50 or Order 46 r 6. Indeed, Counsel properly conceded that she could not satisfy the requirements imposed by s 50.
2. It was presumably in recognition of the constraints imposed by s 50 that Counsel for the Applicant sought to invoke such powers as may be conferred by either or both Order 10 r 1 and/or Order 12 r 5.
3. But no instance was provided by Counsel for the Applicant as to Order 10 r 1(1) being employed by any other Judge of this Court to impose a condition of the kind now sought to be imposed. Nor could any instance be provided as to Order 12 r 5 being employed by any other Judge of this Court in a like manner. Counsel for the Applicant did correctly maintain, though, that the fact that such applications have not previously been made does not mean that the Court does not have power to make the orders sought.
4. Considerable reservation is expressed as to whether or not Order 10 r 1 or Order 12 r 5 can be invoked as the source of any power conferred upon the Court to impose conditions of the kind presently sought to be imposed by the Applicant.
5. Considerable reservation is also expressed as to whether the present hearing may properly be characterised as a "directions hearing" for the purposes of Order 10 r 1. If the present hearing is not a "directions hearing", reliance upon Order 10 r 1 may be misplaced at the outset. Left to one side is whether the manner in which the Applicant proposed to decline to provide particulars in the absence of an undertaking should have been a matter expressly raised with the Respondents and the Court on 30 August 2010 when orders were made for the provision of particulars. The Applicant had been notified by the solicitors for the First and Third to Eleventh Respondents on 19 August 2010 of the particulars sought and presumably had an adequate opportunity prior to 30 August 2010 to consider how that request was to be answered.
6. Notwithstanding the submissions advanced on behalf of Counsel for the Applicant, and notwithstanding the fact that neither Order 10 r 1 nor Order 12 r 5 may not exclude the prospect of further "implied powers" being exercised by the Court, it is unlikely that any "power" of the kind sought to be relied upon by the Applicant can presently be "implied" by reference to these rules.
7. Whatever may be the content or perimeters of any such "implied" or incidental power to impose a condition of the kind now sought to be imposed, however, it is respectfully considered that the relief sought in the Amended Notice of Motion should be refused primarily because:
   • all Respondents have agreed to keep confidential the names of those persons presently unnamed in the Amended Statement of Claim and do not oppose the continued description of those persons in the manner presently employed by the Applicant. Whatever prejudice or harm may otherwise have been feared or anticipated by any of those unnamed persons, the agreement sufficiently addresses those concerns. The legal advisers to (inter alia) David Jones, when first seeking particulars on 19 August 2010, advised the Applicant that "[o]ur clients intend to treat this information confidentially and will not release those details to the media". Their commitment to do so was unwavering. Again on, 3 September 2010, the legal advisers again wrote to the Applicant's solicitors noting expressly that it "wishes to protect the confidentiality of its employees and intends to maintain the confidentiality of the people named in the Statement of Claim". Indeed, why the agreement was not sufficient protection - and why an order of the Court was warranted or necessary - was not explained; and
   • the allegations as to the conduct said to have been engaged in by the Second Respondent as against any of the numbered "employees" involved are not such as to warrant the making of any order. If the allegations are made out as against the Second Respondent, such findings may reflect poorly upon his personal conduct and may expose him to liability. But such allegations as are made do not reflect adversely on the personal integrity of any of the "employees" in issue. The present proceeding is not one in which the allegations of "sexual misconduct" are (for instance) allegations of such egregious conduct that there may be presumed to be an unwillingness to be identified or any real risk to the health of the person concerned assumed. To so characterise the conduct presently alleged is not, of course, to minimise the gravity of the allegations now being made. The allegations the subject of the present proceeding fall well short of the kind of conduct in issue in Witness v Marsden [2000] NSWCA 52, 49 NSWLR 429 where the appropriateness of a witness assuming a pseudonym was explored.

Moreover, and whilst accepting that the disclosure of the identity of (in particular) the presently unnamed employees may well attract considerable unwanted publicity, it is not considered that:

• any such publicity as may well be directed at these persons will be of the same kind or intensity as that presently directed to the Applicant. It is the Applicant alone who has claimed punitive damages against the Respondents (later reported to be a claim for $37,000,000) - and it is the quantum of the claim which has itself considerably contributed to the media coverage of the present proceeding.

And, it is not without significance that there was no evidence that any of these unnamed employees:

• have requested that any application be made to keep their names confidential (perhaps with the exception of those referred to in paragraph [40A]).

Although it may further be presently accepted that not all complaints as to sexual harassment or sexual misconduct in the workplace are reported, and that publicity may well play its own part in deterring any person from making legitimate complaints, there was less than persuasive evidence that such factors assumed any real significance in respect to the presently unnamed persons in the present proceeding.

1. The claim to relief as set forth in the Amended Notice of Motion, accordingly, fails for want of a sound factual foundation. Even if the test to be applied is that advocated by Counsel for the Applicant, merely that it is "proper" or "just" to make the order sought, it is not here considered either "proper" or "just" to do so.
2. It is further respectfully concluded, however, that the order sought in the Amended Notice of Motion cannot be as clinically separated from the principles of "open justice" as Counsel for the Applicant sought to contend. The principle of "open justice", it is considered, is not confined to provisions such as s 17 and s 50 but is also evident in:
   • Order 46 r 6 and the express recognition in that rule that the workings of this Court are to be available for public scrutiny, commencing with the very filing of "an application or other originating process".

The decision in Llewellyn would strongly suggest (if not decide) that there is no such clear distinction between keeping confidential the names of persons at the very outset of a proceeding when providing particulars and at a final hearing. Indeed, the concession properly made by Counsel for the Applicant that the relief now being sought could not warrant an order being made under s 50, only highlights the tension in the argument sought to be advanced on her behalf. If it presently be the assessment of Counsel that the names of these persons will ultimately be disclosed, the reason for now seeking confidentiality must presumably be directed to some other forensic objective. Whatever the objective, the tension remains.

1. The public accountability recognised in Order 46 r 6, it may be further noted, is not to be thwarted by a party filing an "originating process" manifestly devoid of a proper statement of material facts or particulars and in a form which compels a respondent to seek particulars if he is to have any proper opportunity to respond. If it is appropriate in any given case to make an order pursuant to Order 46 r 6(1) precluding the right of inspection otherwise conferred, an application for such an order may be made - possibly by way of an application to a Duty Judge at the same time as an "originating process" is sought to be filed.
2. Reliance upon s 37M does not assist the Applicant's claim to relief. If anything, s 37M considerably weakens the claim. To the extent that that section requires consideration to be given to "justice between the parties", as suggested in Mijac Investments, some disquiet has previously been expressed at the fact that the very manner in which the Amended Statement of Claim has been drafted and filed has enabled the Applicant to have publicly available her account of the allegations but has largely denied the Respondents a like opportunity. The extent of the publicity that the case has attracted has only exacerbated that concern. The failure to previously provide particulars has also contributed to the expense that has been incurred, contrary to the objective mandated by s 37M. But Amended Defences can now be filed once proper particulars have been provided, and the matter can now (hopefully) proceed to hearing "as quickly, inexpensively and efficiently as possible". If the test to be applied in considering the Amended Notice of Motion is "justice between the parties", as it should be, then s 37M certainly does not support the relief now claimed.
3. Moreover, the practical effect of granting the relief now sought in the Amended Notice of Motion would be to keep the names in issue confidential. The practical effect of such relief being granted would be the same as if an order had been made pursuant to s 50 of the Federal Court of Australia Act. Section 50 could be invoked in a case of the present kind, even at that stage of the proceeding when particulars are being ordered. Although it is unnecessary to express any concluded view as to what discretionary powers may be "implied" or necessarily incidental to those conferred by either Order 10 r 1 or Order 12 r 5, it is considered that where those powers are sought to be invoked in a case of the present kind:
   • any discretion must be either read subject to the constraints imposed by s 50 or (at least) informed by reference to the constraints imposed by that section.

So construed, the condition now sought by the Applicant would not be warranted.

1. Any form of sexual misconduct, it may be accepted, is both to be discouraged and if it falls within the jurisdiction of this Court - and if it is made out - will attract such remedies as may be warranted. But it is not considered that the conduct presently alleged warrants the degree of protection now sought by the Applicant in her Amended Notice of Motion..
2. No party submitted that any order as to costs should be other than the usual order that "costs should follow the event". No submission was advanced by any of the Respondents that costs should be awarded on anything other than a "party/party" basis.

1. It is concluded that the Amended Notice of Motion should be dismissed and that the Applicant should pay the costs of the Respondents of and incidental to the present hearing. Those costs would extend to costs of and incidental to the matter first being re-listed on 23 September 2010, as well as on 24 and 27 September 2010, and also such costs as will be incurred in the filing of Amended Defences.
2. Counsel for the Respondents did not oppose extending to the Applicant the opportunity to have 14 days within which to obtain the "consent" of those persons named in paragraph [40A] of the Amended Statement of Claim. Amended Defences should be filed immediately thereafter.
3. The concept, however, of "witness consent" as referred to in paragraph 3 of the Amended Notice of Motion has the potential to be truly disturbing. If a party is not in a position when a claim is filed in this Court to make out an allegation in the absence of "witness consent" - and at that time such "consent" has not been forthcoming - it is highly questionable whether such an allegation should be made. Paragraph [40A] of the Amended Statement of Claim raises serious allegations, including an allegation of unspecified "criminal conduct" against an unnamed "Manager". Whether or not "consent" may ultimately be given or refused, some explanation perhaps may need to be given as to the basis upon which the allegation was first made.
4. A consequence of dismissing the Amended Notice of Motion may also be that it is inappropriate for the present Amended Statement of Claim to continue to fail to name the persons so far not identified. In the absence of an appropriate order of the Court to the contrary, a pleading which does not contain such particulars as are necessary to comply with the Federal Court Rules is a pleading which should not be permitted to remain the vehicle whereby rights are to be determined.
5. In presently accepting the agreement of the Respondents to keep the names confidential as a reason for declining the relief sought in the Amended Notice of Motion, all parties should be aware that no one party can dictate to the Court the manner in which the proceeding will be conducted. Submissions from all parties as to procedural matters will obviously be heard and resolved. But the manner in which litigation is conducted in this Court is not a matter within the exclusive province of the parties. It is the Court that ultimately remains in control of its own procedure and that control needs to address both the interests of the parties and the legitimate public interest in the open administration of justice.
6. Given the concession that (at least at present) an order would not be made pursuant to s 50 suppressing the names of these persons, there must come a time - if it has not already been reached - when the names must be publicly available and the Respondents released from the agreement inter parties to maintain confidentiality.
7. But all such matters remain for future consideration. The sole issue presently resolved is the entitlement of the Applicant to the relief sought in her Amended Notice of Motion.
8. It may finally be noted that the nature of the medical evidence as to the personal difficulties being experienced by the Applicant only reinforces a conclusion previously reached that it is in the interests of all parties to have the present proceeding heard and resolved as quickly as possible. None of the parties, it is understood, oppose that course. The hearing, previously provisionally set down to commence on 20 December 2010 will now be set down for hearing commencing on that date. The hearing will continue during such days as are available between Christmas and the New Year and will further resume at the outset of January 2011.

1. The Orders of the Court are:
   1. The Counsel and legal advisers to the Respondents be released from the undertakings given on 23 September 2010.
   2. The Amended Notice of Motion as filed on 27 September 2010 is dismissed.
   3. Subject to Order 4, the particulars previously requested by the Respondents are to be provided forthwith and, in any event, no later than 30 September 2010.
   4. Such particulars as have been requested by the Respondents in respect to paragraph [40A] of the Amended Statement of Claim are to be provided by no later than midday on 13 October 2010.
   5. In the event that all such particulars as have been sought in respect to paragraph [40A] are not provided by midday on 13 October 2010, that paragraph of the Amended Statement of Claim is struck out.
   6. The Applicant is to pay the costs of and incidental to the hearing of the Amended Notice of Motion filed on 27 September 2010_._
   7. Amended Defences are to be filed by all Respondents no later than 5.00 pm on 15 October 2010.
   8. The proceeding is set down for hearing commencing on 20 December 2010.
   9. Liberty to apply is reserved to any of the parties to apply on two days' notice in writing.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.