Valentine v Fremantlemedia Australia Pty Ltd

AND: FREMANTLEMEDIA AUSTRALIA PTY LTD (ACN 000 693 292)

JUDGE: MORTIMER J DATE: 19 NOVEMBER 2013 PLACE: MELBOURNE

REASONS FOR JUDGMENT (Delivered Ex Tempore and Revised) 1 This proceeding, which was commenced on 19 July 2013, concerned an application by Ms Valentine for declarations and orders in respect of what she alleged to be unlawful discrimination by the respondents during her employment with the first respondent in a role as Libby Kennedy on the television series "Neighbours". She also sought an order that she be re-employed in that role, as well as compensation for economic and non-economic loss. 2 The Court's jurisdiction in the proceeding arises under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act), following the termination of Ms Valentine's complaint by the President of the Australian Human Rights Commission (AHRC). Rule 34.163 of the Federal Court Rules 2011 (Cth) (the Rules) requires a certain form to be used, and certain documents to be filed, together with an originating application, where the Court's jurisdiction under s 46PO is invoked. In particular, r 34.163(2)(a) of the Rules requires the complaint made to the AHRC to be filed with the originating application in this Court. In the present proceeding, this was done by way of a short affidavit from Ms Valentine, which annexed her complaint to the AHRC. The complaint is a detailed document and contains the material facts alleged by Ms Valentine to support the relief she sought in this Court. 3 Directions hearings in the proceeding were adjourned on several occasions at the request of all parties, so that negotiations between them could occur with a view to attempting to resolve all issues between them in this proceeding. These adjournments meant, amongst other things, that there were no directions for pleadings and no substantive documents have been filed by any of the respondents in answer to Ms Valentine's allegations. 4 While those negotiations were taking place, and during the period of the various adjournments of the directions hearings, several requests to inspect the Court's file were made. Access was given to documents falling within the terms of r 2.32(2). However, to facilitate the early and effective resolution of the proceedings in this Court (express objectives of case management under s 37M(2)(d) of the Federal Court of Australia Act 1976 (Cth) (FCA Act)), the Court dealt with requests under r 2.32(4) for leave to inspect documents outside the terms of r 2.32(2) by refusing access to documents which revealed the substance of Ms Valentine's allegations. Refusing leave to inspect documents containing the substance of Ms Valentine's allegations was likely to enhance the prospects of the parties' negotiations being effective and successful. It also preserved the parties' settlement privilege for so long as those negotiations were being undertaken in good faith and in a timely manner: cf the observations of Rares J in Reynolds v JP Morgan Administrative Services Australia Ltd (No 2) (2011) 193 FCR 507 at [30]. 5 By an application dated 13 November 2013, the first, third and fourth respondents applied for more permanent confidentiality orders in respect of certain documents held on the Court's file for the proceeding. This interlocutory application followed the filing on behalf of all parties of proposed consent orders disposing of the entire proceeding on the basis that Ms Valentine's application be dismissed with no order as to costs. So as to accommodate consideration of this interlocutory application within the proceeding, the final orders were not made until the interlocutory application had been heard and determined. Leave was granted at the hearing of the interlocutory application for an amended application to be filed in Court, listing an extra document (identified as (h) in the list below) over which orders were sought. 6 In substance, the interlocutory application sought to have the majority of the substantive documents on the Court's file marked as confidential, for the purposes of r 2.32(3)(a) of the Rules. The result of such identification would be to preclude inspection of those documents by non-parties, even once this proceeding had been concluded. The orders were sought in terms making that confidentiality permanent, although implicitly subject to any future orders of the Court. 7 The applicant and the second respondent supported the interlocutory application. The parties sought orders in the following terms: Pursuant to Rule 2.32(3)(a) of the Federal Court Rules 2011 (FCR) that the following documents are confidential and may not be inspected by a person who is not a party to the proceeding: (a) Any copy of the original complaint to the Australian Human Rights Commission and the notice of termination of the complaint given by the President of the Australian Human Rights Commission, including the copies of such documents attached to the Originating Application under the Australian Human Rights Commission Act 1986 (Cth). (b) Affidavit of Kym Anne Valentine affirmed on 18 July 2013, including Annexures, filed on 19 July 2013; (c) Applicant's Genuine Steps Statement; (d) Respondent's Genuine Steps Statement; (e) Application for Substituted Service filed on 27 August 2013; (f) Additional Documents filed on 27 August 2013; (g) Affidavit of Carol Celia Andrades sworn 27 August 2013, including Annexures, filed 27 August 2013; (h) Affidavit of Teagan McNeight affirmed on 28 August 2013, including Annexures, filed on 29 August 2013 (i) Affidavit of Teagan McNeight affirmed on 12 September 2013, including Annexures, filed on 12 September 2013; (j) Affidavit of Simon Victor Caldwell sworn on 12 September 2013, including Annexures, filed on 12 September 2013; (k) Submissions of the Applicant in support of confidentiality orders, dated 8 November 2013; (l) Submissions of the First, Third and Fourth Respondents in support of confidentiality orders, dated 8 November 2013; (m) Affidavit of Michael Michalandos sworn 8 November 2013, including Annexures, filed in support of the application for these orders. (n) Any other document which records the substance of the allegations made against the Respondents by the Applicant in these proceedings. 8 The application was heard on 19 November 2013. Senior counsel appeared for all parties on the interlocutory application. 9 For the reasons which follow, at the conclusion of the hearing I made orders under r 2.32(3)(a) in respect of some but not all of the documents specified in the amended interlocutory application. At the request and with the consent of all parties, I then subsequently made final orders bringing the proceeding to an end. 10 As senior counsel submitted, non-parties would in any event require leave to inspect most if not all of the documents over which the orders were sought. I accept her submission that, in proceedings under s 46PO of the AHRC Act, documents such as the complaint made to the AHRC are not properly characterised as "pleadings" for the purposes of r 2.32(2)(c) and therefore cannot be inspected as of right. I agree with and adopt, with respect, the reasoning of Rares J in Reynolds 193 FCR 507 at [17]-[24]. 11 There is utility, as senior counsel submitted, in the Court considering in a global manner the question of future access by non-parties under r 2.32(4) to documents there is no entitlement to inspect. First, the Court can be confident about the scope of documents on the file because the proceeding has been brought to an end. Second, and importantly, the finality which the parties have achieved by their resolution of this proceeding would be undermined if they were forced to return to court or make written submissions, on a case-by-case basis over an indeterminate time period, in connection with further requests for access to documents by non-parties to this proceeding. Having successfully resolved all issues between them arising out of this proceeding, the parties are entitled to seek the Court's assistance in attaching as much finality as is possible to that resolution, by having a decision on precisely what documents non-parties may seek leave to inspect in the future. 12 What follows is an explanation of the reasons for the making of the confidentiality orders for the purposes of r 2.32(3)(a). I am conscious that a combination of several adjournments of directions hearings and refusal of leave to access certain documents on the file means that the subject matter of this proceeding has been kept from public view in a manner which may be more complete than would usually be the case. In that sense, there may be an apprehension that the principles of open justice have not been served by the manner in which this proceeding has been conducted. However, the operation of those principles in a particular case must always be balanced against other equally important considerations. 13 The proceeding brought by Ms Valentine has been resolved by agreement at an early stage. This is an outcome the Court, both formally through its legislative scheme and Rules, and informally through case management, strives to achieve. 14 Consistently with the purposes of the settlement privilege, the maintenance of confidentiality around not only the terms of any settlement but the negotiations leading to it, is an important and often critical aspect of a successful resolution. Within a confidential setting, parties with opposing and frequently conflicting interests feel able to exchange views, put propositions, and make and respond to allegations in ways they feel unable to do in an open and public setting. On all sides, concessions, apologies and admissions against interest may be made which would not be made in public. The freedom parties and their representatives feel to conduct negotiations in this way can be inhibited if the allegations which are the subject matter of the proceeding are fully in the public domain. Any proceeding involving allegations of unlawful discrimination will to a greater or lesser extent involve matters which may be quite personal to one or more of the parties. For example, a proceeding where compensation is sought inevitably requires an applicant to disclose the nature of her or his physical or psychological damage or economic loss. Even the latter may touch on very personal issues. Unless an applicant has chosen to put those matters in the public domain in the way the originating application is drafted, then, through the confidentiality of the AHRC process and the operation of the Rules of this Court, those matters can be kept confidential while the Court allows the parties to explore early and final resolution. 15 There will of course come a point at which such resolution seems unlikely and other objectives within the Court's case management responsibilities will need to be addressed, such as requiring the parties to file pleadings. At that point, the opportunities for a wholly confidential resolution may be lost, but that is because the parties themselves have not been able to take advantage of the opportunities they have been afforded to that point. 16 Unless and until the point is reached where other case management objectives should prevail, it will often be appropriate for the Court to make orders in relation to inspection of documents which enhance the likelihood of early and successful resolution by preserving as much as possible some confidentiality about the subject matter of the proceeding. Once a proceeding is resolved, however, these considerations need to be addressed afresh if an application such as this is made. 17 The parties' submissions on the present application can be reduced to four propositions: 18 First, the parties submit that, like Reynolds, the proceeding was commenced and concluded without the principle of open justice being engaged, because there have been no directions hearings, no pleadings and no evidence in the public domain in the sense of having been read in open court. 19 Second, they submit documents containing substantive allegations were filed because the Court's Rules or the conduct of the proceeding required that to occur, because they are compelled to do so by the Court's rules. Having complied with those requirements, non-parties should not benefit from the parties' compliance to inspect and publish documents because of a prurient interest in the matter stemming from the parties' public notoriety. 20 Third, the proceeding has been settled on confidential terms. In this case (as, it was submitted, with Reynolds), the parties submit they would lose the benefit of the confidentiality and non-disclosure provisions of their settlement if access was later granted to the material. 21 Fourth, the parties have sought and achieved finality through the agreed resolution to this proceeding, which could be undermined if non-parties have access to and may report on matters which the parties seek to keep confidential and have no wish to comment on publicly. This submission was developed by reference to matters which, if they were to be included in these reasons, could be introduced into the public domain for the first time. For the reasons set out below, it is not appropriate to refer to those matters further in these reasons. 22 Subject to two qualifications, those four submissions should be accepted. The first qualification is the proposition that the principles of open justice have not been "engaged" in this proceeding. That verb can also be found in an observation by Rares J in Reynolds 193 FCR 507 at [26], in a different context. The principles of open justice are foundational to the exercise of judicial power under Ch III of the Constitution: see Hogan v Hinch (2011) 243 CLR 506 per French CJ at [20]. They are also foundational to the exercise of judicial power at common law: see John Fairfax Group Pty Ltd v Local Court (NSW) (1991) 26 NSWLR 131 at 140-142. Those principles operate from the moment a proceeding is commenced. The FCA Act (see s 17) and the Rules are premised upon them, r 2.32(2) being one example. The fact that the Court was prepared, on occasion, to adjourn directions hearings at the parties' request, and that one consequence may have been there was less media reporting than the parties might otherwise have had to face, should not be seen as an acceptance by the Court that this proceeding should be conducted otherwise than in accordance with the principles of open justice. One of the reasons for a full hearing on the parties' interlocutory application was to ensure the principles of open justice were observed. 23 The second qualification is that the characterisation of outside interest in this proceeding as "prurient" stems no doubt from the parties' particular perspectives. In reporting on court proceedings, the media play a role as the "eyes and ears of the general public": Attorney-General (UK) v Observer Ltd [1990] 1 AC 109 at 183 per Sir John Donaldson MR. Whether that role is performed responsibly is a matter left for the public to judge. Reporting on proceedings accurately and in good faith is enhanced by, and sometimes requires, access to documents in a proceeding. Where parties to a proceeding have a public profile, media reporting is to be expected. That is part of a constellation of factors parties no doubt consider in disputes where, as a precondition to instituting proceedings, parties have had access to an entirely private and confidential process, such as exists in the AHRC. The orders made on the interlocutory application are not made because the Court accepts any criticism of the interest of the media in this proceeding. 24 Of the documents set out in subparas 1(a)-(n) to the application, the document in subpara (a) is Ms Valentine's original complaint to the AHRC, and copies of it. It is fair to say this is the principal document the parties submit should remain confidential, and the one to which many of the considerations set out above most strongly attach. The emphasis on protection of this document is appropriate. The document referred to in subpara (b) is Ms Valentine's affidavit in this Court, which itself contains some sensitive material but which also annexes her complaint. Both those documents clearly should remain confidential on an ongoing basis, given the circumstances in which the proceeding has been resolved. 25 The documents in subparas (g), (h), (i) and (j) include, or have annexed to them, Ms Valentine's complaint to the AHRC. The affidavits at (g), (h), (i) and (j) all deal with an application for substituted service in respect of the second respondent, Mr Kingston. They might, in themselves, not justify any confidentiality orders. However, because Ms Valentine's complaint is an annexure, I am satisfied an order is appropriate. Although it might be possible in respect of these affidavits to make a confidentiality order over only that annexure, there is always the risk of inadvertent disclosure or copying. The importance of maintaining confidentiality over the substance of Ms Valentine's complaint justifies a cautious approach to any documents filed in this proceeding to which it is attached. Accordingly I made orders over the whole of these affidavits and their annexures. 26 The parties' submissions on this interlocutory application (identified in subparas (k) and (l), and Mr Michalandos' affidavit (identified in subpara (m)) contain, as senior counsel submitted, some frank disclosures to the Court about the basis for the resolution of this proceeding. It is in the interests of the administration of justice for the Court to be as fully and frankly informed as is reasonably possible about the basis for ongoing orders such as these. It is also in the interests of the administration of justice for the Court to be given as much probative evidence as possible on which to determine the application. The content of the affidavit and the submissions assisted the determination of this application in part because of their frankness. Parties in the future should not be deterred from adopting this course by the subsequent potential availability of such documents for public inspection and dissemination. For those reasons it is appropriate they remain confidential. 27 I was not satisfied that the documents in subparas (c), (d) and (e) should have confidentiality orders made over them. There is nothing directly or indirectly in the content of those documents to justify such orders. After seeking instructions, senior counsel for the parties did not press for orders over those documents. 28 During the course of the hearing, it became apparent from an inspection of the files by the parties' representatives that there were no documents of the kind referred to in subpara (f) which were not already identified in other subparagraphs. After inspection of the file, senior counsel informed the Court that her instructions were not to press for sub-para (n) of the orders. That order would not have been made in any event, because in terms it could place an unreasonable burden on registry staff to ascertain what documents may fall within or outside it. It is attended with uncertainty and an order of that kind should not, in my opinion, be made under r 2.32(3)(a). I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.