1 Subject to further order, the Herald and Weekly Times Limited, its servants and agents are restrained from publishing the contents of a settlement agreement between Tina Jeffrey and Corrections Victoria and others dated 8 June 2004.

2 I order that the contents of the affidavit of Marlene Morison dated 25 June 2004 not be published.

(given orally at the hearing and subsequently revised)

1 This case involves difficult questions concerning the publication of information obtained from the inspection of a tribunal file.

2 On 10 March 2004 the Equal Opportunity Commission of Victoria referred to the tribunal a complaint by Tina Jeffery against Corrections Victoria and others. Ms Jeffrey was a prison officer in the employ of Corrections Victoria. The complaint concerned events which occurred during the course of her employment by Corrections Victoria.

3 On 5 April 2004 Deputy President Davis, who is in charge of the Anti-Discrimination List, gave directions in the proceeding. These directions included a direction that the matter be listed for a mediation.

4 On 8 June 2004 the parties to the proceeding attended a mediation sponsored by the tribunal. The mediator was Ms F, who is not a member of the tribunal, but is on a list of private mediators whom the tribunal engages from time to time to conduct mediations. The mediation was successful and the parties entered into an agreement in relation to the complaint. Part of that agreement was that the parties would seek an order from the tribunal that the complaint be struck out. Another part of the agreement was as follows:

The parties agree that the terms of this agreement are strictly confidential and may only be disclosed to the parties' legal and/or financial advisers or as required by law.

5 Following the mediation, Ms F filled out a worksheet which is provided to mediators in the tribunal's Anti-Discrimination List. That worksheet has a number of tick boxes. Ms F ticked a box indicating that the matter was resolved and that an order be made after the mediation that the complaint be struck out, with the complainant having a right to apply for reinstatement by 9 August 2004. As Ms F is not a member of the tribunal she did not make this order. Rather Deputy President Davis made such an order on the following day. The order was made in chambers without any appearance of the parties.

6 Another part of the ADL worksheet provides a tick box for the following circumstance:

Despite section 146 of the Victorian Civil and Administrative Tribunal Act 1998 any terms of settlement may only be inspected by a party to the proceeding. (Use this order where terms of settlement are placed on the file in a sealed envelope marked "confidential").

7 The usual practice when mediations are successful is that the mediator places the ADL mediation worksheet, together with any accompanying documents, on the front of the file and a ribbon is placed around the file in order to hold the documents together. As this is the usual practice, there being no evidence to the contrary, I infer that the practice was followed in this case.

8 Subsequently the ADL mediation worksheet and the terms of settlement were attached to the file by use of a plastic binding system. I infer that the ADL mediation worksheet and the terms of settlement were attached to the file by a clerk who worked in the registry of the tribunal.

9 Section 146 of the Victorian Civil and Administrative Tribunal Act ("the VCAT Act" or "the Act") provides:

(1) The principal registrar must keep a file of all documents lodged in a proceeding until the expiration of the period of 5 years after the final determination of the proceeding.

(2) A party in a proceeding may inspect the file of that proceeding without charge.

(3) On paying the prescribed fee (if any) any person may -

(4) The rights conferred by this section are subject to -

10 Ms Kate Jones is employed by The Herald & Weekly Times Ltd as a journalist. She has as her task the reporting of matters that arise before the tribunal. One of the techniques she uses in performing her job is to utilise the right given to a member of the public by section 146(3) of the Act to inspect files in proceedings before the tribunal.

11 At some time after 10 June 2004 and before 24 June 2004, Ms Jones inspected the file in this proceeding. At the time she conducted her inspection there was on the file a copy of the terms of settlement, the order made by Deputy President Davis on 9 June 2004 and the ADL worksheet dated 8 June 2004. I infer that Ms Jones read these three documents.

12 I should say at this stage that, the matter having been brought on with some urgency, much of the evidence has been given informally; indeed, some of the evidence has been given from the bar table; other evidence has resulted from investigations I have made of the staff of the tribunal. The tribunal is not bound by the rules of evidence. Notwithstanding the informal manner in which the evidence has been put before the tribunal, I am satisfied that it has been put before the tribunal fairly and that the facts of the matter can be clearly found.

13 After Ms Jones inspected the file she told other persons about the information in the file and, in particular, about the settlement. I am informed that some 40 people, some of whom are within The Herald & Weekly Times Ltd organisation and some outside of that organisation, were informed of the matter. However there has not been any publication of the content of the terms of settlement in any newspaper published by The Herald & Weekly Times Ltd or in any other media outlet, print or electronic.

14 I was told that Ms Jones believed, when she read the file, that the terms of settlement contained on it were not then confidential. I have no reason to find that Ms Jones did anything in this matter other than act as a professional journalist. But, as I will explain, the case does not turn on the subjective beliefs of Ms Jones, so it is unnecessary to pursue this matter further.

15 On 24 June 2004 the principal registrar of the tribunal had a conversation with Ms Jones. This conversation was to the effect that the terms of settlement that had been placed on the file erroneously and that the terms of settlement were confidential between the parties. Apparently in this conversation Ms Jones indicated that The Herald & Weekly Times Ltd intended to publish a story which would reveal the content of the terms of settlement in a newspaper known as the Herald Sun. I take notice that the Herald Sun is the most popular newspaper in Victoria with a print run of approximately 500,000 copies per day. I was told it had a readership of approximately 1.5 million people per day.

16 At approximately 1:00pm on 24 June 2004 I was informed of this matter by the principal registrar. I indicated to him that I was only prepared to consider making any order in the matter if there was an application by one of the parties to the proceeding and if it was made in public. Later that afternoon such an application was made by Corrections Victoria, who was the principal respondent in the proceeding. Ms Jeffrey and the other respondents were not represented; and, apparently, could not be notified of the application. Notice of that hearing was given to The Herald & Weekly Times Ltd. Mr Justin Quill, solicitor, appeared on behalf of The Herald & Weekly Times Ltd. I gave him leave to appear. Indeed, his client should now be regarded as a party, being a respondent to the present application.

17 Where parties reach a confidential settlement it is inappropriate for the written terms of such a settlement to be placed on the tribunal's file, at least without placing the document in a sealed envelope marked "confidential" and also making an appropriate order under section 146 of the Act. I intend to draw this observation to the attention of the principal mediator of the tribunal, as well as the principal registrar of the tribunal, so that the events that occurred in this case are not repeated.

18 The initial application made by Mr Pizer, who appeared for Corrections Victoria, was for "an order under section 101(3)(b) of the VCAT Act that the contents of the settlement agreement dated 8 June 2004 must not be published". The reasons given for making the application were:

1 The settlement agreement contains confidential information within the meaning of section 101(4)(a)(v) of the VCAT Act.

2 It is in the interests of justice (within the meaning of section 101(4)(b) of the VCAT Act) for the settlement agreement not to be published.

19 I heard that application yesterday and, in doing so, heard submissions by Mr Quill to the effect that section 101 of the VCAT Act was not available in the circumstances because, in essence, it only provided the tribunal with the power to make an order at a hearing or, at least, in connection with a hearing, of a proceeding. As a consequence of some preliminary thoughts that I articulated during the hearing, Mr Pizer indicated that he wished to amend his application by also seeking the following order, namely:

an order granting an injunction pursuant to section 123 of the VCAT Act restraining The Herald & Weekly Times Ltd from publishing the contents of the settlement agreement dated 8 June 2004.

This application was on the basis that the publication of the contents of the settlement agreement would be to breach a confidence, in circumstances where such a confidence was imposed on The Herald & Weekly Times Ltd by operation of law.

20 During argument I also raised the question as to whether the effect of sections 34 and 35 of the VCAT Act might make the publication of the contents of the settlement agreement an offence, by reason of such publication unlawfully disclosing information about the affairs of a person. As matters have transpired it is unnecessary for me to consider that matter further.

21 I now turn to section 101 which is set out below:

101 Hearings to be public unless otherwise ordered

(1) Unless another provision of this Act provides otherwise, all hearings of the Tribunal must be held in public.

(2) The tribunal, on its own initiative or on the application of a party, may direct that a hearing or any part of it be held in private.

(3) In the circumstances set out in sub-section (4) the Tribunal may order -

(b) that the contents of any documents produced to it;

(c) that any information that might enable a person who has appeared before it to be identified -

must not be published except in the manner and to the persons (if any) specified by the Tribunal.

(4) The Tribunal may make an order under sub-section (3) if the Tribunal considers it necessary to do so -

(i) endangering the national security or international security of Australia; or

(iii) endangering the physical safety of any person; or

(v) the publication of confidential information or information the subject of a certificate under section 53 or 54; or

(b) for any other reason in the interests of justice.

(5) The Tribunal's power to make an order under sub-section (2) or (3) is exercisable only by the presiding member.

22 I am satisfied that the content of the settlement agreement is confidential information. The fact that the settlement is confidential information is apparent from the clause in the agreement making that explicit. It is important that the confidence be respected. Hence, if I have the power to do so, I would consider it necessary to make an order under that section to avoid the publication of that confidential information. Further, in the event that I have power to do so, I would also make an order under section 101 on the basis that I considered it necessary to do so for a reason in the interests of justice.

23 Section 88 of the VCAT Act enables the tribunal or the principal registrar to refer a proceeding for mediation. Section 92 of the Act provides that evidence of anything said or done in the course of mediation is not admissible in any hearing before the tribunal in the proceeding, unless all parties agree to the giving of the evidence. Quite apart from that section it is now widely accepted that, in the ordinary course of events, mediation is intended to be a confidential process. This is illustrated by a code of conduct that the tribunal adopted in relation to mediation on 21 December 1999. Clause 7.2 of that code provides:

The mediator must not reveal anything discussed in a private session to another party unless he or she has the express permission of the party whom was present in the private session.

In accordance with section 34(2) of the VCAT Act a mediator must not directly disclose information about the affairs of a person acquired in the performance of functions under or in connection with the VCAT Act.

24 VCAT has been in the vanguard of promoting mediation as a method of resolving disputes. My predecessor, Kellam J, has been instrumental in leading that initiative. Since I have assumed the position as President of the tribunal, I have continued with the initiative he commenced. Mediation is particularly important in the Anti-Discrimination List of the tribunal. It is important for several reasons.

25 First, it significantly enhances the capacity of the tribunal to deal promptly with the business before it. This is illustrated by the fact that only one in twenty of the complaints of discrimination that are referred to the tribunal go to a full hearing. The other nineteen are settled, most often as a result of a mediation process. As a full hearing commonly takes several days, it is quite obvious that there is a very significant benefit to the public by encouraging mediation in this list.

26 Second, it has been said, and with some merit, that a mediated solution is preferable in the public interest to an arbitrated solution. This is an observation of greater force in relation to matters that raise emotional issues, and in which on-going relationships are involved, than in commercial matters. Many anti-discrimination cases are emotional and involve on-going relationships.

27 For these and, no doubt, other reasons, it is in the public interest and in the interests of justice that the mediation process be protected and enhanced. Further that mediation process is protected and enhanced by acknowledging and respecting the fact that mediation ought be a confidential process. If the parties settle a proceeding on a confidential basis, this is an outcome that should be respected.

28 However, I have come to the conclusion that I do not have power, pursuant to section 101, to make an order in this case that the contents of the terms of settlement not be published. Rather I have been persuaded by the submissions made to me by Mr Quill that section 101 is not available. It is unnecessary to reach conclusions as to the ambit of section 101. It is sufficient to observe that it is not sufficiently broad to enable an order to be made that the contents of the document produced to the tribunal during the mediation in this case be not published.

29 The starting point in relation to section 101 is that it is a provision that potentially restricts the openness of matters before the tribunal. Uninformed by authority, my approach to section 101 would be to apply it on the basis of the language used in the section. But my attention has been drawn to the decision of Beach J in The Herald & Weekly Times Ltd v The Magistrates' Court of Victoria [1999] VSC 232, particularly at paragraphs 44 and 45, where his Honour adopted a passage from Kirby J to the effect that sections like section 101 should usually be strictly and narrowly construed.

30 Looking at section 101 I am not persuaded that it applies to documents produced to the tribunal in the course of a mediation. Section 101(3) refers to various circumstances, all of which more aptly fit circumstances that arise during a hearing. It is at a hearing, not a mediation, that evidence is given. It is at a hearing, rather than a mediation, that one would normally refer to a person having appeared. In relation to the particular provision relied upon, namely the reference to "the contents of any documents produced to it", this is language more fitting to a hearing than to the placement of a document on a file before a hearing is scheduled. The language more commonly used in the latter circumstances is that of filing a document.

31 The power in section 101 is given to the presiding member. This is language that is apt to the power being in relation to a hearing. It is possible that there might be a "presiding member" at a mediation, although, not in the present circumstance, where the mediator was not a member of the tribunal.

32 There is some support to Mr Quill's contention from other parts of section 101, where there is specific reference to, and a focus upon, hearings. The context in which section 101(3)(b) is to be found also indicates that it is a power that is not intended to be at large and to apply to documents produced to a mediator and then placed on the tribunal file. This context is not only the context of section 101, but is also the context that section 101 is found in; that is, a series of sections dealing with hearings, being part of Division 7 of Part 4 of the Act. By contrast there is a separate part of the Act, namely Division 5 of Part 4, which deals with compulsory conferences, mediation and settlement.

33 Thus, although I am satisfied that it would be appropriate to make an order under section 101 if I had the power to do so, there is no power to do so in relation to the contents of the settlement agreement in this case.

Injunction under section 123 of the Act to prevent breach of confidence

34 The second application was made pursuant to section 123 of the VCAT Act. This provides in sub-section (1):

The Tribunal may by order grant an injunction, including an interim injunction, in any proceeding if it is just and convenient to do so.

The word "proceeding" is defined in section 3 of the Act to mean "a proceeding in the Tribunal" and includes certain other things such as a mediation.

35 Two main issues arise in relation to this second application. One is whether the tribunal has power to grant an injunction or whether the tribunal is functus officio. The second is, if the tribunal does have power, whether it should grant the injunction.

36 An application for an injunction pursuant to section 123 of the Act, like an application for a declaration pursuant to section 124 of the Act, is not a separate proceeding in itself. Rather such an application may only be made in the context of an existing proceeding: see Re Lovell and Boroondara City Council [2000] VCAT 966, at paragraph 5. Hence, if the tribunal has power to make the injunction sought, proceeding A77/2004 must be a proceeding which has not been finally completed in all respects.

37 In Buttigieg v Melton Shire Council [2004] VCAT 868, at paragraph 50, I said:

The word "proceeding" is used throughout the VCAT Act. It is defined in section 3 of the Act to mean "a proceeding in the tribunal", and also includes compulsory conferences and mediations. Ordinarily a proceeding commences when process (usually an application) is lodged with the tribunal; and is completed when all issues are finally determined.

38 When an order is made affirming a decision or setting aside a decision or ordering damages or dismissing an application, the substantive issues in that case would usually be regarded as having been finally determined. But even then there would still be some issues that might not be finally determined. For example if the decision contained an accidental slip, it would be possible for that slip to be corrected using section 119 of the Act. If a person had not appeared at the hearing, it may be open for an application to be made to the tribunal that the order be revoked under section 120 of the Act. It has also been long established that the tribunal retains a power to consider an application for costs, notwithstanding that the substantive issue in the case is finally determined. Perhaps that is now articulated in section 109(2) that provides "at any time, the Tribunal may order that a party pay all or the specified costs of another party in a proceeding" (my emphasis).

39 It would be inimical to the interests of justice to close the field of the matters which might still involve an issue to be determined in a proceeding following the determination of the substantial issues in the proceeding. By not closing the field this does not mean that an opportunity should be given to a party to reopen issues that have already been decided. But there will be unusual occasions, which cannot be accurately predicted, where other issues may arise in a proceeding which ought be dealt with as part of that proceeding; and can be conveniently dealt with as part of the proceeding. I think this case falls into that category.

40 In any event, as Mr Pizer has pointed out, the order made by Deputy President Davis on 9 June 2004 was not that the complaint be dismissed, but rather that it be struck out. He pointed to a distinction between the concept of striking out a proceeding and the concept of dismissing a proceeding; and highlighted that, in the former case, it is possible that the proceeding be reinstated. It might be that dismissal is death; but striking out is no more than terminal illness, often leading to death.

41 In Siddalls v Housing Guarantee Fund Ltd [2004] VCAT 701 Deputy President Macnamara dealt with this issue in some detail. Relying upon the decision of Warren J of the Supreme Court of Victoria in Tanska v Transport Accident Commission [2000] VSC 56, he held that the tribunal was not functus officio following the striking out of a proceeding.

42 Hence I hold that the tribunal does have jurisdiction to grant the injunction sought as, to grant such an injunction, would be to grant an injunction in the proceeding between Jeffrey and Corrections Victoria. I might add that even if Deputy President Davis had dismissed the application in her order on 9 June 2004, I would have reached the same conclusion.

43 In a sense it could be said that if section 101 is to be interpreted narrowly, the power to grant permanent injunctions given to the tribunal in section 123 ought to be interpreted broadly. It is a power that has been given to judicial members of VCAT, to be exercised to achieve just outcomes in a convenient way. It is obviously more convenient for this matter to be dealt with by the tribunal rather than the Supreme Court of Victoria, because the tribunal is already partly seized of the issues in the case. The tribunal is an organisation that has, as part of its membership, judicial officers, including a judge of the Supreme Court of Victoria. It would be a strange outcome if too much turned on a hat being worn by the judicial officer at the time the application was made.

44 Turning to the substance of the application, Mr Pizer submitted that Ms Jones and The Herald & Weekly Times Ltd have been imported with a confidence in the contents of the terms of settlement by reason of the circumstances in which they obtained knowledge of those contents; and, consequently, have an obligation to maintain the confidence. He submitted that, in the absence of an injunction, it was likely that the Herald Sun would publish a story revealing those contents.

45 In Coco v A N Clark Engineers Ltd (1969) RPC 41 at 47 Megarry J identified three elements of an equitable duty to maintain a confidence:

Three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First the information itself in the words of Lord Green MR in the Saltman case [(1948) 65 RPC 203, 215] must `have the necessary quality of confidence about it.' Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.

46 The terms of settlement do have the necessary quality of confidence about them. When the terms of settlement were placed upon the tribunal file, the contents of the terms of settlement were intended to be confidential. This is so notwithstanding that the mediator did not tick the box indicating that an order should be made pursuant to section 146 of the VCAT Act. The failure to tick this box should be regarded as an error having regard to the unambiguous words contained in the terms of settlement themselves.

47 As to the second element identified by Megarry J, the test seems to be what a reasonable person would understand to have been intended in all the circumstances: see Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 225, Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408 at 459 to 460, National Education Advancement Programs Pty Ltd v Ashton (1995) 128 FLR 334 at 344 to 345 and Director of Public Prosecutions v Kane (1997) 140 FLR 468. It also seems clear from these authorities that it is not only the circumstances that exist at the time the information is acquired which is relevant, but also the circumstances that exist at the time of a threatened breach of the confidence.

48 When Ms Jones inspected the file, a reasonable person in her position would have been alert to the fact that the terms of settlement stated that they were strictly confidential. However, a reasonable person in her position at that time would have also been alerted to the fact that the terms of settlement were on the file, a course which would not normally be the case if terms were strictly confidential. Further, a reasonable person in her position would, at that time, observe that the mediator had not requested an order be made pursuant to section 146 of the Act. Further, a reasonable person in her position at that time would have appreciated that sometimes terms, which were strictly confidential, no longer remain confidential by agreement between parties or for other reasons.

49 Taking all the circumstances into account I find that at the time Ms Jones inspected the file, a reasonable person would have had a suspicion that the terms of settlement were confidential, but would not have been certain that this was the case. It is unnecessary for me to go beyond this, because the answer to this case can be sufficiently found by making findings as to what is the current situation, immediately prior to a threatened breach of the confidence.

50 Currently it is clear that The Herald & Weekly Times Ltd and Ms Jones are aware that the terms of settlement are intended to be confidential; that the terms of settlement were wrongly placed on the file in an open format; that the clause in the terms of settlement stating that they are strictly confidential is still operative; and that nothing can now be taken from the fact that the document was placed on the tribunal's file. Whether these matters became obvious yesterday morning when the principal registrar spoke to Ms Jones, or whether they only became obvious during the course of the hearing yesterday, does not matter. It is sufficient to conclude that, at this point in time, prior to any publication of the terms in a newspaper operated by The Herald & Weekly Times Ltd, a reasonable person ought know that the content of the terms of settlement are confidential; and, being in possession of that information, ought respect that confidence.

51 Mr Quill sought to answer these conclusions by another proposition. He said that the horse had bolted. He supported this by the "evidence" that some 40 people knew of the content of the terms of settlement. In this respect he argued that it was too late to grant an injunction because, by reason of those persons learning of the content of the terms of settlement, the content could no longer be regarded as confidential.

52 The notion of confidential information is not so black and white. It is commonplace in everyday life for information to be described by laypersons as confidential, even though persons within a certain group may know of it. Obviously a point will be reached when the number of people who know of the information is so widespread that the information could no longer be regarded as confidential. Where the line is to be drawn obviously depends on all the circumstances. But in the case of the type of information in the terms of settlement, I find that the fact that some 40 odd people have been informed of it does not deny the information of the quality of being confidential information. That number can be contrasted with the number of readers who typically read the Herald Sun each day.

53 In this regard, I also take into account the critical audience which Corrections Victoria wishes to avoid the information being disclosed to. This critical audience consists of prisoners in the corrections system, particularly prisoners who might have contact with Ms Jeffrey. There is no evidence that the 40 odd people who have been informed of the contents of the information consist of any persons in this critical class; and I infer it is unlikely that members of this class are part of the 40 or so who have been informed. That being so I reject the submission made by Mr Quill that the information has lost its quality of confidence.

54 It follows that the three essentials identified by Megarry J in Coco are satisfied in the present case. That being so, it is appropriate to grant the injunction sought.

55 Mr Quill submitted that the wording of the injunction sought by Corrections Victoria should be varied. He suggested that instead of being an injunction restraining The Herald & Weekly Times Ltd from publishing the contents of the settlement agreement, it should be an injunction restraining The Herald & Weekly Times Ltd from publishing information obtained from the settlement agreement. There may be a subtle difference between the wording sought and the wording suggested, but even if there is I prefer the wording put forward by Corrections Victoria. Some flexibility can be provided by making the order sought to be "subject to further order" and the order I will make will be so framed. The danger with the alternative wording is that information about the settlement agreement might be obtained from other sources, which are not independent of the information that was obtained from observing the terms of settlement in the tribunal file. Obviously if the information about the settlement agreement is obtained from a source that is independent of the observations made of the tribunal file, that would not be a matter of concern to the tribunal. But, in the circumstances, the inconvenience placed upon The Herald & Weekly Times Ltd by making the order in the form sought is outweighed by the fact that the wording sought is more likely to promote respect for the confidence that was contained in the terms of settlement.

56 During the course of the proceeding before me an affidavit was filed concerning the mediation process and the possible effect of the terms of settlement being publicly revealed. I clearly have power under section 101 of the VCAT Act to make an order in relation to that affidavit. I think that the affidavit is so connected with the terms of settlement, and in particular the confidential nature of the terms of settlement, that it is appropriate that I make an order under section 101 in relation to it in order to avoid the publication of confidential information, and, also, in the interests of justice. Indeed I think it is necessary to do so, and I make such an order accordingly.