(given orally at the hearing and subsequently revised)

1 In June 1999 a proceeding was initiated before the tribunal in its Anti-Discrimination List in which Maria Korp was the complainant and Pacific Dunlop Pty Ltd, trading as South Pacific Tyres, was the respondent. The proceeding was pursuant to the Equal Opportunity Act 1995. The tribunal opened a file, as is its usual practice, and there was placed upon the file various documents in relation to the proceeding. These included the usual documents stating particulars of the complaint, the response of the respondent and the like.

2 It would appear from the file that the respondent made application to the tribunal to strike out the complaint pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998. An oral hearing of that application was fixed, but the hearing was adjourned on two occasions; as it would appear settlement discussions were taking place. The last record on the file, which is dated 30 March 2000, is the adjournment of the hearing of the oral submissions in relation to the strike out application to a date to be fixed. There is not any clear indication on the file as to what happened after that time; but I infer and find that the matter was settled as there was no indication of any further action in the matter after that date. This is supported by the fact that there are documents on the file dated shortly before 30 March 2000 indicating that settlement discussions were advanced and the matter was likely to settle shortly.

3 In the last few days an incident has occurred whereby Mrs Korp is now in hospital and, as I understand it, in a coma. Certain people have been charged with various offences in relation to the incident. This has been a matter of great interest to the public and has led the front pages of various news media.

4 It is in this context that an application has now been made to the tribunal under Rule 6.08 of the VCAT Rules by the Herald Sun, The Age, 3AW and Channel 9 for a direction or order that those persons be permitted to inspect and copy the file in question.

5 Rule 6.08 of the VCAT Rules, which was introduced on 2 December 2004, provides:

6.08 Right to inspect proceeding files subject to condition

For the purposes of section 146(4) of the Act, the right conferred on a person (other than a party) by section 146(3) of the Act to inspect and copy a file in a proceeding under -

(a) the Equal Opportunity Act 1995; or

(b) the Racial and Religious Tolerance Act 2001 -

is subject to the condition that the person may only inspect and copy the file or part of the file if a member of the Tribunal has given a direction or made an order authorising the person to conduct an inspection of the file or part of the file or make a copy of the file or part of the file.

This rule is somewhat similar to rules applying to the tribunal's Guardianship List, Occupational and Business Regulation List and Taxation List. In those lists the similar rule has been in force for many years, whereas in the Anti-Discrimination List the particular rule is of recent origin. For the record, I also note that the Herald Sun has challenged the validity of the rule in the Supreme Court of Victoria. That challenge has been heard, but is awaiting judgment. For present purposes, though, it is appropriate that I proceed on the basis that the rule is valid.

6 Rule 6.08 must be understood in the context of section 146 of the Victorian Civil and Administrative Tribunal Act, which relevantly provides in relation to files held by the tribunal in particular proceedings:

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

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

(d) any certificate under section 53 or 54.

No mention has been made of whether the prescribed fee has been paid, but I will proceed upon the assumption that the various media applicants are willing and able to pay the prescribed fee.

7 The exercise of the power of the tribunal to direct or order that a non-party may inspect and copy a file is to be exercised having regard to the purposes of the rule and the interests of justice. Similarly if the tribunal is to make any direction pursuant to section 146(4)(b) of the VCAT Act it should be guided by the interests of justice.

8 It is a basic principle of justice in our society that hearings before courts and tribunals are held in public unless there are special circumstances. That rule, in the case of VCAT, is encapsulated in section 101 of the VCAT Act. This provides, in essence, that all hearings of the tribunal must be held in public; but the section gives the tribunal the power, in certain circumstances, to order that a hearing or certain parts of a hearing be held in a way that excludes the public.

9 However the current application does not really bring this basic principle into question. The application does not relate to public access to a hearing before the tribunal or something said at a hearing before the tribunal. Rather it relates to access to documents held on a file that concern a proceeding, not a hearing. There is a distinction between the two. At a hearing, in the course of a proceeding of this type at least, evidence would be given on oath and would be subject to cross-examination. Hence if a person could not sustain a statement when on oath or could not sustain it when cross-examined, the public and those representing the public, such as the media, would be in a position to faithfully report the true position. By contrast, allegations made as part of a written complaint which is referred to the tribunal, or a statement in a defence forming part of a written document lodged by a respondent, are unlikely to be sworn, have not been subject to cross-examination, and have not, at that stage, been made in a public forum.

10 The tribunal has a strong commitment to mediation. This commitment applies to a very high degree in the Anti-Discrimination List. Indeed the number of cases commenced in the Anti-Discrimination List that go to a full hearing is only about one in twenty, with the balance being settled, often by mediation. The tribunal engages in in-house mediation. Many of its members and senior members are not only skilled in mediation, but also devote a significant amount of their time to resolving disputes using that method. Mediation as a method of settling disputes works better if, at the time of the mediation, the allegations made by the parties have not been aired publicly. In the case of a complaint, say of sexual harassment, if the complaint is made public an innocent respondent will often be reluctant to settle a matter believing that only a public outcome in their favour will remedy the impact of the publicity. Publicity locks the parties in.

11 In making Rule 6.08 the Rules Committee of the tribunal, of which I am a member, was conscious of the difference between allegations made in written documents referred to the tribunal and allegations made in a public hearing under oath and subject to cross-examination. It was also conscious of the need to adopt procedures that promoted mediation and did not impair mediation. I find these factors relevant to the exercise of the discretion in 6.08 and, for that matter, if I choose to exercise it, the discretion to make a direction under section 146(4)(b). I think I should be conscious of the basis of the rule and the principles underlying that rule.

12 In the present case there is nothing in the documents in the file which records what was said at a public hearing. Rather the documents on the file relate to a period before any oral hearing was conducted by the tribunal (save for a compulsory conference, following which standard directions were made). The matter was not subject to any formal mediation, but was settled between the parties; but I think the same principles apply in relation to settlement between parties as to settlement in a formal mediation process.

13 There are some other important factors that are relevant. In my opinion it would be unfair to the parties to a proceeding to permit non-party access to a file that relates to pre-hearing matters without, at least, giving them the opportunity to be heard. It is, of course, impossible in present circumstances for Mrs Korp to be heard because of her medical condition; and the interests of the respondent, and possibly employees of the respondent, would also need to be addressed. If I was inclined to accede to the present application I would require, before making any order or direction, that the parties, and possibly other persons named in the 1999 proceeding, be notified of the application and be heard. As I am not inclined to accept the present application in any event, I do not propose to require such notification.

14 In my opinion there is a significant difference between a matter which is of interest to the public and a matter which is in the public interest. I have no doubt that the documents in the tribunal's file would be of interest to the public. However I am not satisfied that providing non-party access to the file would be in the public interest. Certainly, in my opinion, it is not in the public interest to provide access because charges have been brought against certain persons in relation to Mrs Korp.

15 Further, in my opinion, it is not in the public interest to provide access in order to give effect to the principle of open justice. That principle is essentially directed to what happens in hearings before tribunals and courts: which are nearly always held in public. It is not a principle that necessarily applies to documents lodged with courts and tribunals. There have been other occasions when non-parties have sought access to documents filed with courts and tribunals. At least in some instances, this has had the potential to be prejudicial to the ability of the parties to settle the matter or to be otherwise prejudicial to the public interest of facilitating a degree of privacy in relation to some litigation.

16 In matters under the Equal Opportunity Act I believe the interests of the parties, and the public interest, is often best met by promoting conciliation and achieving a harmonious settlement. That public interest, as well as the interest of the parties, is enhanced by a rule such as 6.08. In the circumstances of the present case, it is also enhanced by declining to exercise the power to give an order or direction authorising a non-party to inspect the file; and, instead, making a direction to the contrary.