Reynolds v JP Morgan Administrative Services Australia Limited

Counsel for the First Respondent: Mr P Wood

Solicitor for the First Respondent: Allens Arthur Robinson

Counsel for the Second Respondent: Mr JL Trew QC

Solicitor for the Second Respondent: Toomey Pegg Lawyers

Counsel for Fairfax Media Publications Pty Ltd: Mr DR Sibtain

Solicitor for Fairfax Media Publications Pty Ltd: Fairfax Media Publications Pty Ltd Legal Unit

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1325 of 2010

AND: JP MORGAN ADMINISTRATIVE SERVICES AUSTRALIA LIMITED

JUDGE: RARES J DATE OF ORDER: 13 MAY 2011 WHERE MADE: SYDNEY

1. The applications of Ms Hannah Low, Ms Vanda Carson and Fairfax Media Publications Pty Ltd to inspect the Forms 167 and 168 filed in these proceedings be refused.
2. Fairfax Media Publications Pty Ltd pay the costs of the parties of the applications to inspect, as agreed, or taxed, such costs to be limited to the costs of the applicant and one of the respondents to consider and enter a submitting appearance and of the other respondents to oppose the application at the hearing and that those costs then be apportioned equally between the respondents or as they may otherwise agree. 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.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1325 of 2010

AND: JP MORGAN ADMINISTRATIVE SERVICES AUSTRALIA LIMITED

REASONS FOR JUDGMENT 1 These proceedings were commenced by Kylie Reynolds on 8 October 2010. She filed an application seeking relief against the respondents pursuant to s 46PO(4) of the Australian Human Rights Commission Act 1986 (Cth) in respect of their alleged unlawful discrimination against her. On the same day, Ms Reynolds filed a "claim" in a Form 167 prescribed under O 81 r 5 of the Federal Court Rules. Subsequently, each of JP Morgan Administrative Services Australia Ltd and Brian Johnson filed a "defence" in a Form 168 prescribed under O 81 r 7. 2 The parties engaged in settlement discussions in late 2010 and the proceedings were settled. On 7 January 2011, I made orders by consent dismissing the proceedings with no order as to costs and directing the Registrar to refer to the Court any application to inspect the Form 167 in the proceedings or the documents accompanying it. The latter order repeated the order I had made at the first directions hearing on 29 October 2010: Reynolds v JP Morgan Administrative Services Australia Ltd [2010] FCA 1243. 3 Shortly afterwards, on 11 January 2011, Hannah Low of The Australian Financial Review made a request for non party access to inspect the application, "claim" and defences on the Court file in these proceedings. On 27 January 2011, Vanda Carson of The Sydney Morning Herald made a similar request. Both journalists were employed by Fairfax Media Publications Pty Ltd which argued that its journalists were entitled to have access to the documents. 4 All of the parties to the proceedings, Ms Reynolds, JP Morgan and Mr Johnson, opposed Fairfax having access to the Forms 167 and 168 but did not object to it having access to the application filed on 8 October 2010.

Legislative scheme 5 A pleading is defined in O 1 r 4 as including, unless the contrary intention appears, a statement of claim and a cross-claim to which O 5 applies, and subsequent pleadings but does not include an application, notice of motion or affidavit. An originating process is defined as meaning, unless the contrary intention appears, a document filed in the Court that commences a proceeding in its original jurisdiction (O 1 r 4). Under O 4 r 1 all proceedings in the Court's original jurisdiction must be commenced by filing an application, other than in circumstances which do not apply here. Ordinarily, O 4 r 6(1) requires an applicant "… to file and serve with the application either an affidavit in accordance with Form 20 or, a statement of claim in accordance with Form 7, whichever is appropriate". 6 However, proceedings under s 46PO of the Australian Human Rights Commission Act are regulated, in part, by O 81. Under s 46PO(1), a person who was affected in relation to a complaint may make an application to this Court or the Federal Magistrates Court alleging unlawful discrimination if the complaint has been terminated by the President of the Australian Human Rights Commission and if the President had previously given any person, who was a complainant, a notice under s 46PH(2) in relation to that termination. Importantly, O 81 relevantly provided: "4 Application of Order 81 (1) This Order applies to a proceeding in the Court alleging unlawful discrimination. Note Under section 46PO of the Human Rights Act, an affected person may apply to the Court for an order in relation to a complaint alleging unlawful discrimination if the complaint has been terminated by the President of the Commission. (2) The other Orders of these Rules apply, so far as they are relevant and not inconsistent with this Order, to a proceeding in the Court alleging unlawful discrimination. 5 Commencement of proceeding (1) A proceeding alleging unlawful discrimination must be commenced by filing an application in accordance with Form 5. Note See section 33C of the Federal Court of Australia Act 1976 and Order 6, rule 2 in relation to representative proceedings and joinder of parties. (2) The application must: (a) be accompanied by a claim in accordance with Form 167; and (b) include details of any claim that is made in addition to the allegation of unlawful discrimination. ... 7 Defence to an application - Form 168 (1) A defence to an application must be in accordance with Form 168. (3) Unless the Court or a Judge otherwise orders, a respondent need not file an appearance under Order 9, rule 3 if the respondent files and serves a defence before the date fixed for the directions hearing for the application." (emphasis added) 7 Relevantly, O 46 r 6 provides: "6 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; ..... (c) a pleading or particulars of a pleading; (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 ..... (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)." 8 The prescribed Form 167 consists of a series of 16 items, many of which are in the form of questions directed to the applicant. Items 11 to 14 are as follows: Relevant legislation 11 Describe the discrimination you are complaining of (The unlawful discrimination must: (a) be the same or substantially the same as the discrimination that was the subject of the complaint terminated by the Australian Human Rights Commission; or (b) arise out of the same or substantially the same acts, omissions or practices that were the subject of complaint.) Attach an extra page if necessary 12 Under what Act is the discrimination you are complaining of unlawful? □ the Age Discrimination Act 2004 □ the Disability Discrimination Act 1992 □ the Racial Discrimination Act 1975 □ the Sex Discrimination Act 1984 13 State all sections of the Act that are relevant to this claim Remedy sought 14 What remedy are you asking the Court for? □ Apology from respondent □ Compensation Please give details on an attached sheet of how much compensation you are claiming and how the amount has been calculated (eg loss of income). □ Other Please give details on an attached sheet

9 In addition, item 16 of Form 167 requires the applicant to annex a copy of his or her original complaint to the Commission and a notice of termination of the complaint by the President of the Commission. 10 The prescribed Form 168 is described as a "defence". It consists of a series of 9 items. However, none of those items is directed to stating any matter or ground on which the respondent seeks to defend the "claim" alleging unlawful discrimination.

The course of the proceedings 11 At the first directions hearing on 29 October 2010, I ordered Ms Reynolds to file and serve, on or before 19 November 2010, an amended application and a statement of claim with all proper particulars. I was subsequently asked to, and did, extend the time for compliance with that order to 25 November 2010 in light of the fact that parties were negotiating. The matter was relisted on 14 December 2010 because Ms Reynolds was in default, but, on that occasion the proceedings were stood over to 17 December 2010 since the parties' settlement negotiations were progressing. The parties announced in open court on 17 December 2010 that they had reached a settlement and that, ultimately, consent orders to give effect to it would be proposed. 12 In resisting Fairfax's application, JP Morgan relied on an affidavit of a senior executive, Gerrard Fitzgibbon. He said, without objection, that the parties' settlement deed contained terms that the circumstances relating to Ms Reynolds' complaint to the Commission and the attachments to the Form 167 be confidential to the parties and not disclosed. He emphasised that those terms were of fundamental importance to JP Morgan in agreeing to enter into the settlement. I accept that evidence.

Fairfax's submissions 13 Initially, Fairfax argued that the "claim" in Form 167 and "defence" in Form 168 were pleadings within the meaning of O 46 r 6(2)(c) and so were open to be inspected by it as of right. Fairfax said that the Form 167 was a pleading and the Form 168 was its answer, and so was also a pleading. It contended that this followed because the definition of "pleading" in O 1 r 4 was inclusive and that nothing in O 81 or any other provision of the Rules suggested that a "claim" under O 81 r 5 or "defence" under O 81 r 7 was not a pleading. 14 In response, the parties drew attention to an observation by Allsop J in Thomson v Orica Australia Pty Ltd [2002] FCA 939 at [3], [25] and [32] that Form 167 was not, and did not provide for, any pleading. That interpretation was adopted by McKerracher J in Reading v Partnership of Western Diagnostic Pathology [2008] FCA 1381 at [42]. Fairfax in its written submissions in reply abandoned its reliance on either Forms 167 or 168 being a "pleading". It was correct to have abandoned that contention. 15 However, Fairfax then resiled from its concession in oral argument that Form 167 was not part of an originating process within the meaning of O 46 r 6(2)(a). It contended that Allsop J had "appeared to accept that the Form 167 formed part of the originating process" in Thomson [2002] FCA 939 at [25]. Fairfax contended that proceedings under s 46PO of the Australian Human Rights Act and O 81 were sui generis and that their originating process consisted of a collocation of both Form 5 (being the form prescribed for an application in the Court's original jurisdiction) and Form 167. It argued that McKerracher J had "appeared to proceed" on a similar assumption in Reading [2008] FCA 1381 at [43]. 16 Fairfax argued that the collocation of the application and Form 167 was intended to characterise the nature of the controversy that the applicant sought to have quelled by the Court. It contended that the Form 167 was unlike either an affidavit that had not been read or deployed in open court or a discovered or like document that had been produced under compulsion that had not been tendered. Fairfax submitted that there was no reason to treat a Form 167 as if it were a confidential document or subject to the implied undertaking given to the Court by a party or other person who obtains access to a document by use of the compulsory processes of the Court: cf Hearne v Street (2008) 235 CLR 125 at 160-162 [109]-[111] per Hayne, Heydon and Crennan JJ. Rather, so Fairfax argued, items 11-14 and 16 in a Form 167 required an applicant to identify and define factual matters amounting to the unlawful discrimination complained of that were put in issue by the application. It contended that the Form 167 accompanied the application at the time both were filed in accordance with O 81 r 5(2)(a) and, thus, was part of an originating process or pleading.

Consideration - Is Fairfax entitled to inspect the Forms 167 and 168 of right pursuant to O 46 r 6(2)? 17 Form 167 requires an applicant to identify the unlawful discrimination complained of, to specify the remedy or remedies sought and to annex copies of the complaint to the Commission and the notice of termination. However, Form 168 does not provide anywhere for a response to those matters. Therefore, it is apparent that neither Form 167 nor Form 168 is intended to operate as a pleading or in a manner analogous to a pleading. There is no certainty that any document annexed to a Form 167 will be deployed or tendered in proceedings commenced pursuant to O 81. No such document was deployed or tendered in these proceedings. Additionally, the documents that item 16 requires to be annexed to a Form 167 are the initiating complaint to the Commission and the President's notice of termination. 18 Despite its misleading title as a "defence", Form 168 does nothing to identify any issue. Rather, Form 168 contains some material that would be in a notice of appearance by a respondent together with further material that would not ordinarily be disclosed in court documents, for example, whether the respondent had special requirements such as a need for wheelchair access, a hearing loop or the presence of a carer (item 6) or whether the respondent had applied for legal aid (item 8). 19 The scheme of Div 2 of Pt IIB of the Australian Human Rights Commission Act envisages that once a complaint alleging unlawful discrimination is lodged under s 46P it will be referred to the President (or her delegate) who must inquire into and attempt to conciliate the complaint (ss 46PD, 46PF(1)). The President (or her delegate) may terminate the complaint on a number of grounds including that she is satisfied that there is no reasonable prospect of it being settled by conciliation (s 46PH(1)(i)). The process contemplated by Div 2 of Pt IIB is that the President and the parties to a complaint will engage, in private, in an attempted conciliation. If that process results in the termination of a complaint, then s 46PO(1) and (3) confer a right in a complainant to commence proceedings in the Court based on the same, or substantially the same, unlawful discrimination alleged in the complaint or arising out of the same, or substantially the same, acts, omissions or practices that were the subject of the terminated complaint. 20 The evident purpose of item 16 in Form 167 is to ensure that there will be available to the Court, if these are even needed, first, the complaint to the Commission and, secondly, the President's notice of termination. Thus, the complaint will be available to the Court if a dispute arises as to whether the unlawful discrimination alleged in the application is within the ambit of the conduct permitted to be sued on under s 46PO(3). Additionally, the notice of termination will be available if there is any dispute about the jurisdictional requirement in s 46PO(1)(a) that the President has terminated the complaint. But, if no such dispute or issue arises in the proceedings in the Court, neither of those documents may come to be tendered or deployed in the litigation (although it is conceivable that a complainant might be cross-examined at a final hearing about the contents of his or her complaint to the Commission). However, the original complaint may not be determinative for that purpose. This is because the question whether the subject matter of subsequent proceedings in the Court are justiciable under s 46PO(3) is determined by considering the shape that the complaint had assumed at the time of its termination: Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 at [47] per Marshall, Rares and Flick JJ 21 Those factors suggest that, unlike a pleading that defines issues, the purpose of item 16 is to ensure the future availability of documents for the Court proceeding, that may or may not be required. That objective is understandable in a jurisdiction in which often one or more parties will be self-represented. Moreover, none of the items in Form 167, including items 11-14, provide for any form of pleading, as Allsop J held in Thomson [2002] FCA 939 at [25]. 22 It is unlikely that Forms 167 and 168 will have utility in defining or resolving the controversy raised in an application under O 81. Their contents, when completed, are unlikely to assist the parties or the Court, in the ordinary course, to resolve the issues raised in such an application. Ordinarily the parties to proceedings under O 81 will have either to prepare pleadings or use affidavits or statements to enable the issues for trial to be identified. 23 I am of opinion that neither Form 167 nor Form 168 operates as a pleading. I agree with the conclusions and reasons of Allsop J in Thomson [2002] FCA 939 at [3], [25] and [32] and McKerracher J in Reading [2008] FCA 1381 at [42] that Form 167 is not a pleading. I do not accept that in either judgment Allsop J or McKerracher J found or suggested that Form 167 was a pleading or part of the originating process. The application is the originating process, as each of O 4 r 1(1) and O 81 r 5(1) makes clear. A Form 167 must accompany an application pursuant to O 81 r 5(2)(a). The form itself is not an originating process or a pleading within the meaning of O 46 r 6(2)(a) or (c). 24 For these reasons, Forms 167 and 168 are not documents that fall within any class of document described in O 46 r 6(2) and, in particular, neither is a form of originating process, a pleading or particulars of a pleading. It follows that Fairfax had no right to inspect them.

Should leave to inspect the Forms 167 or 168 be granted under O 46 r 6(4)? 25 Fairfax did not lead any evidence to support its application to inspect the Forms 167 and 168 in these proceedings. Each of those documents was filed by each party under compulsion, in accordance with the requirements of O 81 rr 5(2) and 7(1). The documents attached to the Form 167 in compliance with item 16 were also included in the Court file under the compulsion provided by O 81 r 5(2). None of the documents played any role in the proceedings conducted in open court prior to 7 January 2011 when I made consent orders by which the parties gave effect to their settlement agreement. 26 The mere fact that a document is on the Court file is not a sufficient reason to permit or grant leave for its inspection by a person, such as Fairfax, who is not a party. The jurisdiction of the Court ordinarily must be exercised in open court: s 17(1) of the Federal Court of Australia Act 1976 (Cth); Dickason v Dickason (1913) 17 CLR 50 at 51 per Barton ACJ, Isaacs, Gavan Duffy, Powers and Rich JJ. The interests of open justice are not engaged simply because material is on the Court file that has not been tendered or admitted into evidence and ordinarily leave to inspect such material under O 46 r 6(3) will not be granted: Hogan v Australian Crime Commission (2010) 240 CLR 651 at 667 [40]-[41] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ (affirming what Emmett J had held: P v Australian Crime Commission (2008) 250 ALR 66 at 70 [19]-[20]). 27 I am of opinion that the same principle applies to material such as the Forms 167 and 168 here. None of those documents played any role in the conduct of the proceedings in open court. Thus, there is no occasion to justify granting access to a non-party such as Fairfax to any of that material under O 46 r 6(4) or as an incident to the operation of the principle of open justice. 28 Moreover, the unchallenged evidence of Mr Fitzgibbon satisfies me that the parties agreed to keep the terms of the complaint and the attachments to the Form 167 filed by Ms Reynolds confidential. There is no evidence that any of this material is already in the public domain. It was not deployed, nor did it play in any part, in the conduct of the proceedings in open court. Accordingly, the principle of open justice has not been engaged in respect of that material. And, there is no reason why Fairfax should have access to that material, having regard to, first, the confidentiality which the parties to the proceedings have accorded to it and, secondly, the circumstances in which the original complaint came into existence and, thirdly, the circumstances in which the copy of it and the notice of termination became attached to the Form 167 and filed in the Court. 29 The original complaint was the means by which the power of the President of the Commission was enlivened to engage in the process of attempting to conciliate the dispute under Div 2 of Pt IIB of the Australian Human Rights Act. That process and its details were private to the parties and the President and other officers of the Commission. And, as I have found, item 16 of Form 167 compelled Ms Reynolds to attach the original complaint and notice of termination to it. The implied undertaking as to confidentiality of documents produced by compulsion of Court orders or requirements applied to those documents: Street 235 CLR at 160-162 [109]-[111]. 30 There is a very significant public interest in the settlement of litigation. This is reflected in the existence at common law of the privilege that attaches to without prejudice communications for the purpose of negotiating for a settlement of a dispute. In addition, that privilege is also reflected in s 131 of the Evidence Act 1995 (Cth) which excludes such communications from being admissible except in certain limited circumstances. In the circumstances of this matter, if Fairfax were to be granted access to the Form 167 then the parties, and in particular JP Morgan, would lose the benefit of the confidentiality and non-disclosure provisions of their settlement: Harrington v Lowe (1996) 190 CLR 311 at 323 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ; cf White v Overland (2001) 67 ALD 731 at 751-752 [89]-[91] per Allsop J; Macquarie Radio Network Pty Ltd v Australian Broadcasting Authority [2002] FCA 1408 at [24]-[26] per Sackville J. 31 For these reasons, I am not satisfied that Fairfax should be granted access to any of the material it seeks under O 46 r 6(4) or otherwise.

Conclusion 32 Accordingly, Fairfax's application must be refused. Although each of JP Morgan and Mr Johnson put substantive arguments, the parties all made common cause against Fairfax's application. It was not necessary for each party to be separately represented to oppose that application. Only one set of costs should be ordered against Fairfax. That can be apportioned equally between JP Morgan and Mr Johnson, or as they may otherwise agree, each of whom made substantive submissions. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.