Fulcher v Local Government Association Workers Compensation Scheme

(e) requiring that a hearing, or part of a hearing, be held in private; or

(f) prohibiting or restricting the publication of the name and address of a witness appearing before the Tribunal; or

(g) prohibiting or restricting the publication of evidence given before the Tribunal or of the contents of any document produced to the Tribunal; or

(h) prohibiting or restricting the disclosure to some or all of the parties to proceedings before the Tribunal of evidence given before the Tribunal or of the contents of any document produced to the Tribunal; or

(i) excluding any person from the hearing before the Tribunal of any part of the proceedings.

(3) A person must comply with a direction of the Tribunal under subsection (2). Maximum penalty: $10 000.

1. Some preliminary observations may be made from the text of the section. Firstly, s 55(1) reflects the principle of open justice. It directs that, ordinarily, proceedings before the Tribunal must be heard in public. That is ordinarily the position because it is subject to two qualifications. Firstly, it is subject to the SAET Act and secondly, it is subject to any relevant provision of another Act. There are Acts of the State and Commonwealth Parliament which may refer to a matter relevant to a consideration of whether there should be a restriction in the identification of individuals.[2] The subsequent subsections to s 55 qualify the principle of open justice by empowering the Tribunal to give directions as set out in s 55(2)(e)-(i), if it is satisfied that it is desirable to do so, where the circumstances are within the ambit of s 55(2)(a)-(d). The text of s 55(2)(d) in context, provides, in all the circumstances, an unfettered discretion, but it must be exercised judicially. Later in these reasons I will address the legal principles to be applied in this case in the exercise of the discretion conferred.

1. The Town of Gawler submitted that there were circumstances in this case within the ambit of s 55(2)(a), (b), (c) and (d) of the SAET Act and that the prohibition or restriction in disclosure of names of the persons identified in the application would be an order appropriately made under s 55(2)(g) of the SAET Act.
2. In relation to s 55(2)(a), the Town of Gawler submitted that the names of the identified employees are not necessary for the public's understanding of the Tribunal's reasoning or the legal principles applied in the primary decision. It was submitted that a redaction of the names of those employees is appropriate as they had no involvement in the litigation beyond being interviewed for the purposes of an investigation into Mr Fulcher's workplace conduct in 2024. In those circumstances it was submitted the interest of justice favours shielding the employees from unnecessary identification.
3. In relation to s 55(2)(b), it was acknowledged that that the Tribunal found that the information provided by the employees was not confidential as a matter of law but nevertheless an assurance had been given of confidentiality, the information that was sensitive and within the ambit of the subsection.
4. In relation to s 55(2)(c), it was submitted that the redaction sought "would avoid the need for further interlocutory steps or further applications, avoiding any potential delays in the substantive application before the Tribunal".
5. In relation to s 55(2)(d), the Town of Gawler submitted that "the employees' collective and the genuine fear of repercussions is a significant factor weighing in favour of the exercise of the discretion". It was also submitted that reduction would minimise the risk of psychological harm to the individuals.

1. The LGA consented to the application and advanced no submissions.

1. Mr Fulcher opposed the application. He referred to the primary decision already having been published and questioned how s 55 of the SAET Act could operate in relation to a published decision.
2. In so far as the Town of Gawler raised a concern regarding the disclosure of the names of witnesses to Mr Fulcher, he observed that he is already aware of the names as identified in the primary decision and that in relation to specifically what was reported by each of the witnesses interviewed, he will become aware of that information once the order set out in the primary decision is complied with. The employees referred to in the application were already known to Mr Fulcher as they had been identified in the Show Cause letter sent by the Town of Gawler to Mr Fulcher.
3. Mr Fulcher observed that generally, in accordance with the principle of open justice, the names of witnesses will be reported in decisions of the Tribunal. He submitted the Town of Gawler had failed to identify a good reason to depart from the usual position. He contended that, properly understood, the submission of the Town of Gawler amounts to no more than the employees would prefer not to be named.
4. Finally, Mr Fulcher submitted that if the employees are so concerned about being identified at an interlocutory stage of the proceeding, then it would be difficult to contemplate them participating in the substantive hearing. As I understood the submission, put another way, it would be inconsistent for the employees to resist the publication of their names now and then actively participate at trial.

1. Mr Fulcher has raised whether the Tribunal has jurisdiction to make orders under s 55 of the SAET Act after a decision has been delivered to the parties. Whilst he did not refer to any authority, it is well established that the first duty of every court in approaching a cause before it is to consider its jurisdiction.[3]
2. The approach to statutory construction at common law is well established. It is to construe the text of the provision which may require consideration of the context which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[4] In South Australia, the Legislation Interpretation Act 2021 (SA), largely codifies and clarifies particular aspects of the common law approach to statutory construction. Relevantly, s 14(1) requires a purposive approach and provides that "the interpretation that best achieves the purpose or object of the Act or instrument (whether or not that purpose or object is expressly stated in the Act or instrument) is to be preferred to any other interpretation".
3. Decisions of the South Australian Employment Tribunal are delivered to the parties and are uploaded to the AustLII website. It remains on the website to be accessed by the public at any time, in any location and indefinitely. A publication is an act or event to which there are at least two parties, the publisher and a person to whom material is published.[5]
4. It is necessary to address the nature of the publication involving the world wide web. It is common knowledge that the internet is a system of globally linked computer networks that communicate with each other. A standard protocol is utilised. The world wide web is a system of web pages comprised of linked documents which may be accessed by the use of the internet.
5. The AustLII website is hosted on a computer server and is controlled by AustLII. A member of the public may use a software program on a computer called a web browser to then access the world wide web. Examples are Google, Safari and Bing. Through this process, publication is not static. There is ongoing publication for so long as AustLII, as web master, retains the primary decision upon its website and may be accessed by members of the public. In this context, it is not necessary to address issues such as the entity or entities that may be the relevant publisher. Concepts of primary and secondary publication, as utilised in the law of defamation, are not relevant.
6. For the purpose of s 55 of the SAET Act the publication of the decision is not confined to the delivery to the parties on 20 February 2026. The publication via the AustLII website has been ongoing. The construction of "publication" within s 55(2)(g) of the SAET Act, submitted by Mr Fulcher, is restrictive and not consistent with the text of the sub-section, which expresses no such restriction. It is not supported by the text of the section as a whole and is not supported by the general purpose and policy of the section. As already observed, the section overall is expressed in broad terms providing an unfettered discretion that is to be exercised judicially. The expression in s 55(1) that hearings in public are subject to any other Act recognises that other Acts may restrict the publication of information that comes before the Tribunal. There may be inadvertent disclosure of such information in a decision delivered to parties. The policy and purpose of the provision is to confer a broad power upon the Tribunal so that it may make such orders and directions it considers desirable, in relation to the subject matter of the section. In doing so, the Tribunal is guided by the interest of justice, through established legal principle.
7. This reasoning is consistent with the decision of the Full Bench of this Tribunal in Chief Executive, Attorney-General's Department v Montrose (No 2)[6] (Montrose). In that case, following the publication by the Full Bench of reasons for judgment in Chief Executive, Attorney-General's Department v Montrose,[7] Ms Montrose made application for the Full Bench to restrict further publication of parts of the reasons for judgment. The Full Bench dismissed the application on its merits, not because there was a lack of jurisdiction. It implicitly held there was jurisdiction to make the order that was sought following a final judgment.
8. The judgment in Montrose addresses the principles to be applied for the exercise of the discretion conferred by s 55 judicially. It is not necessary to address the judgment in detail but the following legal principles are relevant to the exercise of discretion in this case:
   1. The principle of open justice relates to the court process and only requires exposure to the general public of the subject matter of that process in so far as is necessary for the public to be able to scrutinise the court process itself.[8]
   2. The party that seeks to restrict publication bears the onus of persuading the Tribunal not only that the criteria in s 55(2) are satisfied, but that, in addition, in balancing the interests of open justice with the potential effect upon the person making application if there were to be unrestricted publication, the discretion should be exercised in the manner sought.[9]
   3. Embarrassment alone will be insufficient to displace the principle of open administration of justice.[10]
9. Montrose concerned an application to restrict publication of information in a final judgment of a Full Bench of this Tribunal. The circumstances in this case are materially different. The primary decision relates to an interlocutory application where, as noted in the primary decision, some findings and observations relating to facts were made by reference to untested affidavit and other documentary evidence.[11] I stated that the findings were not intended to be concluded findings in the substantive proceeding.[12]
10. The approach to the disclosure of documents by reference to the principle of open justice where there has not been a trial was addressed in News Corporation v Department of Treasury and Finance (Jeisman)[13] (Jeisman). Although that concerned an application pursuant s 87(1) and (2) of the SAET Act for a media outlet to have access to and then copy documents retained in a file of the Tribunal, the decision also referred to s 55 and the decision was referred to with approval in Montrose.[14]
11. In Jeisman, the Tribunal observed that untested assertions in documents affecting individuals who are not parties to the proceedings would be a relevant consideration in the exercise of the discretion.[15]
12. In Jeisman, the Tribunal referred to another factor specific to the operation of this Tribunal. It stated:

The early resolution of disputes, through the exchange of affidavit evidence and settlement conferences and mediation, are important to the day-to-day efficiency and efficacy of the Tribunal. In this jurisdiction, settlement conferences and mediations are commonly supervised by presidential members of the Tribunal.... Sometimes a party to a proceeding will agree to a settlement in the expectation that, by doing so, the party will avoid the airing of what are considered to be unpleasant allegations against that party in a public court environment.

1. Mr Smith, an officer of the court, has reported to the Tribunal that the employees themselves have sought redaction of their names and the possibility of psychological harm has been raised. Whilst no medical evidence was presented, the application was made and addressed urgently. I have taken those matters into account. They are to be considered in all the circumstances. The continued reference by Mr Smith to "certain assurances" having been provided to the employees regarding confidentiality is not accurate.[16] It is also inconsistent with findings made in the primary decision.[17] The references by Mr Smith to a need to "protect" the employees and of a "fear of repercussions" was not adequately explained. As submitted by Mr Fulcher, it cannot reasonably relate to him given the findings in the primary decision and the orders made for the disclosure and production of the documents related to the interviews undertaken and the investigation report. Perhaps Mr Smith was referring to repercussions in a broader sense through publication to the general public but that was not explained. The reference to avoiding further applications was vague and unhelpful.
2. In balancing the considerations for and against the granting of the application of the Town of Gawler, the dominant factors were the circumstances of an interlocutory decision, that the disclosure of the names of the employees is not necessary for an understanding of the reasons for decision and that, in the circumstances of the expressed continued reluctance of the employees to be involved in this matter, there may be difficulties in the presentation of the LGA's case at trial and the parties may wish to now engage in a settlement conference. I concluded it is in the interest of justice to redact the names, which had been in a document produced to the Tribunal, in accordance with s 55(2)(a) and (g) of the SAET Act, until further order.

[1] [2026] SAET 19.

[2] See, for example, s 71A of the Evidence Act 1929 (SA) and s 10H and s 114N of the Family Law Act 1975 (Cth).

[3] Commissioner of Taxation v Tomaras [2018] HCA 62 at [132] (Kiefel CJ and Keane J); Director of Public Prosecutions (SA) v B [1998] HCA 45; (1998) 194 CLR 566; Hazeldell v the Commonwealth [1924] HCA 36; (1924) 34 CLR 442 at 446.

[4] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 at [23]-[26]; [2012] HCA 56; (2012) 248 CLR 378 at 388-389.

[5] Dow Jones & Co. v Gutnick [2002] HCA 56; (2002) 210 CLR 575, [40] (Gleeson CJ, McHugh, Gummow and Hayne JJ). Although the observation was made in the context of the law of defamation where harm to reputation is identified when a defamatory publication is comprehended by the reader, it is also apposite to the circumstances of publication contemplated by s 55(2)(g) of the SAET Act.

[6] [2023] SAET 91.

[7] [2023] SAET 83.

[8] Montrose supra [15] and the reference to Smith v Harris [1996] No 2 VR 335 at 350 (Byrne J).

[10] Montrose supra [13] and reference to a passage from the judgment of Kirby P in John Fairfax Group v Local Court of NSW (1991) 26 NSWLR 131, 141.

[13] [2020] SAET 142. In that case, the parties reached a settlement of the matter prior to trial.