FEDERAL COURT OF AUSTRALIA

Oldham v Capgemini Australia Pty Ltd (No 2) [2016] FCA 1101

ORDERS

THE COURT ORDERS THAT:

1.    The application by non-party for access to the complaint made to the Australian Human Rights Commission by the applicant is refused.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER J:

THE APPLICATION FOR ACCESS

1    On 16 August 2016, Lennon Mazzeo Lawyers, an Australian law firm, made an application for non-party access to the “Human Rights Complaint referred to as the ‘statement’ in the Applicant’s Statement of Claim dated 24 December 2014”. The application stated it was made on behalf of Mr Christopher Stevenson of counsel, a barrister operating out of Wellington, New Zealand. The reference to the “Statement of Claim” is a reference to the statement of claim filed on behalf of Ms Oldham in this proceeding.

2    The document to which access is sought, which I shall describe as the “AHRC Complaint”, was filed on behalf of Ms Oldham with the Australian Human Rights Commission on 23 October 2013. It contained allegations of disability and sex discrimination in the field of employment against the respondents. This complaint ultimately founded the proceeding brought by Ms Oldham in this Court.

3    The underlying reason for the August 2016 access application relates to an appeal against conviction lodged by Mr Lewis Scott, which is currently pending before the Court of Appeal of New Zealand. There have been previous attempts on behalf of Mr Scott to secure access to the AHRC Complaint, and I have recounted these attempts in my previous decision refusing access: see Oldham v Capgemini Australia Pty Ltd [2015] FCA 1149. As I noted in those reasons, I did not consider it necessary or appropriate to disclose anything further about the offences for which Mr Scott was convicted, nor the substance of how the statement of claim in this proceeding and the AHRC Complaint are said to be relevant to those offences and his foreshadowed appeal. The new material before the Court on the August 2016 access application provided by Lennon Mazzeo indicates that the suppression provisions of the Criminal Procedure Act 2011 (NZ) remain in effect, which would support this approach.

4    Accordingly, aspects of these reasons are more truncated than might otherwise be the case.

5    The August 2016 access application was supported by further material consisting of: a “Minute” of the Court of Appeal of New Zealand dated 5 February 2016; a judgment and orders of Court of Appeal of New Zealand dated 15 July 2016; an email from an officer in the Court of Appeal of New Zealand Registry to Mr Stevenson of counsel; and a document setting out the reasons for the August 2016 access application. I have considered that material, as well as the material which has been provided on the two previous occasions on which access to the AHRC Complaint has been sought. This material included an affidavit of Ms Oldham opposing the grant of access and an affidavit of Mr Michael Smith, who had acted as defence counsel for Mr Scott at trial. No further material either opposing or agreeing to the August 2016 application has been filed by Ms Oldham or the respondents.

THE NEW MATERIAL

6    The current application addresses, by way of further material and submissions, some of the matters to which I referred in my previous reasons as weighing against the exercise of the discretion to grant access.

7    Mindful that I should not disclose the details of the New Zealand proceedings in a way which might frustrate the purpose of the suppression provisions of the Criminal Procedure Act, in summary, Lennon Mazzeo make the following submissions. First, a hearing in the Court of Appeal of New Zealand will take place in November 2016; second, there is only one ground of appeal to be pursued and the AHRC Complaint is relevant to that ground; and third, all reasonable efforts have been made in New Zealand to obtain the information sought. These matters address, it is submitted, the findings I had made on the previous occasion that the access application was hypothetical because there was no material indicating an appeal by Mr Scott was active, nor when any appeal might be heard; and also my finding that there was insufficient indication of the utility of access being granted to the ACHR Complaint. I accept those matters are adequately addressed by the new material.

8    Critically, Lennon Mazzeo rely on views which have now been expressed by the Court of Appeal of New Zealand concerning the potential relevance of the AHRC Complaint to Mr Scott’s appeal. Those views came to be expressed in the following way. As part of seeking to raise a ground of appeal based on new information contended to arise from the statement of claim filed in this proceeding, Mr Scott’s legal representatives sought compulsory disclosure of medical records from various hospitals and medical centres in New Zealand. It was this application for compulsory disclosure which resulted in the “Minute” of the Court of Appeal dated 5 February 2016, which seems to be a form of reasons for judgment, but without substantive orders being made. The “Minute” records that the application for disclosure orders was adjourned after it became apparent further enquires needed to be made to identify the correct medical centres which should be the subject of summonses.

9    In the “Minute”, the Court of Appeal (Kós, Fogarty and Mallon JJ) described Mr Scott’s contentions in the following way (at [21]):

At this stage it is somewhat speculative as to whether there is information that may have a material bearing on the appeal.

10    However in the same paragraph, the Court of Appeal concluded the allegations in the statement of claim (and, the Court appeared to reason, in the AHRC Complaint) could be:

potentially fresh evidence … raising an issue about the safety of the verdict.

11    I have omitted parts of this sentence which in my opinion should not be made public.

12    The application for disclosure then returned before the Court of Appeal in June 2016. Two medical centres had been identified and had produced medical records. However, the Court of Appeal (Miller, Mallon and Peters JJ, reasons delivered by Mallon J), having inspected the documents produced, decided none of them bore any relevance to the matters contended by Mr Scott to arise from the statement of claim. The application for disclosure was therefore declined. In the final paragraph of its reasons, the Court of Appeal stated (at [5]):

Counsel for the appellant intends to make further enquiries in Australia. It is envisaged that the appeal against conviction will only be pursued if those enquiries uncover materially relevant information. Counsel for the appellant will file a memorandum setting out the steps he proposes to take and the timeframe for those steps so that a time for the appeal, if it is to proceed, can be scheduled.

13    The next piece of information relied on in the August 2016 access application is an email from an officer within the Court of Appeal Registry to Mr Stevenson informing him Mr Scott’s appeal had been listed for 15 November 2016 in Wellington. How this email sits with the last sentence of the Court of Appeal’s reasons to which I have just referred is not made clear on the material before me. For example, there is no evidence before this Court whether (aside from the August 2016 access application) any “further enquiries in Australia” have occurred and, if so, what the outcome of those other enquiries might have been.

RESOLUTION

14    I begin with the propositions which emerged from my previous reasons refusing access. In my opinion, a Complaint made to the AHRC is a private and confidential document, strictly protected under the AHRC legislation, which does not become part of the “pleadings” in this Court and does not lose its private and confidential character because the Federal Court Rules 2011 (Cth) require that it (and the Commission’s notice of termination) are to be filed with any initiating process as proof of satisfaction of the precondition to this Court’s jurisdiction under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).

15    Those propositions continue to tend against exercising the discretion available under r 2.32(4) of the Rules to grant access. The question is whether the new material now before the Court is such as to make it appropriate, in the interests of the administration of justice, that access be granted to the AHRC Complaint.

16    I accept, on the basis of the material now provided, that there is more certainty around the use to which Mr Scott’s legal representatives propose to put the AHRC Complaint. As I explained in my previous reasons, given the presumptive confidentiality of a complaint to the AHRC, it is relevant for the Court to assess the use to which the document is proposed to be put if access is granted.

17    At this point, I refer to a decision of which I had not been aware when I gave my previous ruling. It is a decision of Rares J in Reynolds v JP Morgan Administrative Services Australia Ltd (No 2) [2011] FCA 489; 193 FCR 507. The decision concerned an application of the same kind as in the present proceeding, but on behalf of a media organisation. It was made under an equivalent provision to r 2.32(4) in the former Federal Court Rules 1979 (Cth): namely, O 46, r 6(4).

18    Rares J held (at [17], [23]-[24]) that the applicant’s complaint to the AHRC and the AHRC notice of termination were not part of the originating process nor the pleadings and were therefore not available for inspection by a non-party as of right. His Honour also declined to grant access as a matter of discretion, saying (at [26]-[27]):

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 [40]-[41] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ (affirming what Emmett J had held: P v Australian Crime Commission (2008) 71 ATR 555 at [19]-[20]).

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.

19    Save in two respects, the situation in the present proceeding is the same as that facing Rares J. In both proceedings, the AHRC Complaint has not been deployed in open court. However in this proceeding, as I noted in the previous decision, it is extensively cross-referenced in the statement of claim. In that sense, it has been deployed in the applicant’s allegations in this Court. However, the cross-references to the AHRC Complaint give some particulars of the allegations, as a matter of fairness to the respondents to the proceeding: that is their only function. Ultimately, what was contained in the cross-references would have had to be proven by admissible evidence. That did not occur, for reasons I discuss below. There is no aspect of the principles of open justice which in my opinion favours the release of the AHRC Complaint.

20    The second point of distinction from the circumstances in JP Morgan is that access was sought in that case by a media organisation, and here it is sought by a private individual to advance his own interests in an unrelated proceeding in another jurisdiction. The purpose for which access is sought may, I accept, tend in favour of release, especially given Mr Scott’s underlying contention that his conviction was unsafe. However, Mr Scott is a stranger to the proceedings in this Court and it is, as I noted in my previous decision, the interests of the administration of justice in this Court which are of principal importance to the exercise of the Court’s discretion.

21    I make those findings with due respect and regard for the observations of the Court of Appeal to which I have referred at [9] to [12] above. The Court of Appeal was in the difficult position of not having seen either the underlying AHRC Complaint, nor the affidavit of Ms Oldham opposing access. The contents of that affidavit have weighed heavily with me, for reasons that will be apparent to those who know the circumstances of the criminal proceedings in New Zealand.

22    Another subsequent development which I must consider in exercising the discretion is that the proceeding in this Court has been resolved some time ago, by agreement. The Court was informed of this, and a notice of discontinuance was filed in the proceeding on 2 December 2015.

23    My previous decision on access was made on 26 October 2015, which demonstrates how long it has been since Mr Scott’s representatives have sought to re-agitate their client’s interest in an access application.

24    In JP Morgan, the proceeding before Rares J had also settled by agreement. In that case, his Honour had the benefit of evidence about the terms of settlement, which included confidentiality clauses. Rares J made the following observations (at [30]), with which I respectfully agree:

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 [89]-[91] per Allsop J; Macquarie Radio Network Pty Ltd v Australian Broadcasting Authority [2002] FCA 1408 at [24]-[26] per Sackville J.

25    Unlike Rares J, I have no evidence about the terms of settlement between the parties in the present proceeding. I have no evidence whether those terms included confidentiality clauses. I consider I can take judicial notice of the fact that such clauses are common in settlements in such areas as anti-discrimination. Whether or not this settlement did include such a term, what can be said is that there has not been, and now will not be, any evidence led in open court of the matters to which Ms Oldham referred in her statement of claim, with its references to the AHRC Complaint.

26    I have not found this a straightforward decision. At a level of generality, it would be persuasive to speak of the interests of the administration of justice in ensuring that the conviction of an individual for a serious crime is not affected by appellable error. However, when the particular circumstances of the present application are considered, I do not find a statement at that level of generality sufficiently persuasive: in part because of countervailing considerations, and in part because, as I set out below, it seems to me unlikely in the extreme that the substantiation of Mr Scott’s ground of appeal could be dependent on a document such as the AHRC Complaint. Therefore, although not a straightforward decision, the following matters tell in favour of not releasing the AHRC Complaint.

27    First, the confidentiality of the AHRC process. For the reasons I have given in my previous decision, this Court’s Rules require lodgement of the complaint and its associated documents as proof of the termination of the complaint by the AHRC, because that termination is a precondition to this Court’s jurisdiction. Rares J made the following point about this process in JP Morgan (at [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 at [109]-[111].

28    Otherwise, the AHRC Complaint forms no part of a proceeding in this Court and, unless the subject of admissions or agreement under s 191 of the Evidence Act 1995 (Cth), the allegations made in such a document must be proven in the usual way at trial. I continue to hold the view I expressed in my previous reasons that the confidentiality of the AHRC process, with its concomitant public interest considerations, would be significantly undermined by the release of an AHRC complaint, unless an applicant consents.

29    Release of the AHRC Complaint to a stranger to the proceeding, but one whom Ms Oldham strenuously objects to seeing the document, would defeat the purpose and effect of the confidentiality provisions in the AHRC Act and the implied undertaking.

30    Second, the settlement of the proceeding strengthens the case to refuse access. In my opinion, and even in the absence of evidence about the precise terms of settlement of this proceeding, it would be inimical to the negotiation process which leads to the settlement of a proceeding in this Court, its discontinuance without judicial pronouncement of any kind, and the accompanying closing of the Court’s file with no further proceedings in open court, for a sensitive document such as the AHRC Complaint to be released over an applicant’s opposition. It would not be unusual for parties (not just applicants) in proceedings such as this to have as one of the motivations for settlement a desire to keep from the public gaze detailed factual allegations of the kind which are frequently set out in complaints made to the Commission. The Court should be mindful not to frustrate these consequences of settlement which may be in the contemplation of parties when they agree to resolve a proceeding by agreement.

31    Third, the principles of open justice have no direct application to the circumstances of this access application. It is the admission of material into evidence which engages the principles of open justice: see Hogan v Australian Crime Commission [2010] HCA 2; 240 CLR 651 at [41]. It is at that point that even material which is sensitive, embarrassing, and hitherto kept confidential (even by court order) may nevertheless be made available to the general public: see Hogan at [42]-[43]. This proceeding did not reach the stage of any material being admitted into evidence. Ms Oldham was compelled to attach her AHRC Complaint in order effectively to engage this Court’s jurisdiction. Once that was done, then subject to any forensic deployment of the document (if permitted) at trial, the function of the AHRC Complaint in this Court’s exercise of jurisdiction was spent. I see no basis to consider that, in these circumstances, the AHRC Complaint has lost the confidential character given to it by the AHRC legislation, to which I referred in my previous reasons.

32    Finally, in my respectful opinion, the subject matter of the AHRC Complaint is sufficiently revealed in the pleadings to which Mr Scott’s legal representatives have always had access. The matters sought to be raised as “new evidence” on the appeal are identified in the pleadings. I do not consider there is any sufficient further detail in the Complaint about those issues which outweighs the other considerations to which I have referred.

33    It is not at all apparent to me how the AHRC Complaint could possibly be admissible in evidence on a criminal appeal, although I recognise I am far from fully informed about the content and application of the rules of evidence in New Zealand. If the purpose of access is no more than to facilitate the pursuit of further enquiries, then that may be a different matter. In either case, as is apparent from the statement of claim, what the AHRC Complaint does is to give some particulars of the pleaded allegations. Mr Scott’s legal representatives already have those pleaded allegations and therefore know the subject matter of them. If Ms Oldham is a compellable witness on an appeal against conviction under New Zealand law, then I see no reason why that avenue could not be pursued. If she is not a compellable witness, I see no reason why her non-compellability should be effectively circumvented by giving access to an unsworn statement she had made in confidence in a different jurisdiction for entirely different purposes, containing a great deal of sensitive information about Ms Oldham that is irrelevant to the circumstances of Mr Scott’s appeal, as well a great deal of information about third parties.

34    Although the AHRC Complaint may be seen by Mr Scott’s legal representatives as the most convenient way for them to access additional information relevant to their client’s appeal, their convenience is of little weight in the exercise of the Court’s discretion, especially after they have known about the allegations in the statement of claim for more than 18 months. How they have chosen to advance the forensic interests of their client’s appeal during that time, and what other avenues they have chosen to pursue, is a matter for them.

35    The further application for access to the AHRC Complaint is refused.

Associate:

Dated:    8 September 2016