FEDERAL COURT OF AUSTRALIA

EOX17 v Commonwealth of Australia [2019] FCA 1118

REASONS FOR JUDGMENT

PERRAM J:

1    This proceeding was filed on 29 March 2019. The applicant claims to be entitled to a disability support pension from an earlier date than that which has been allowed. Although the claim takes the form of a judicial review proceeding it is in substance a claim for back payment of the pension. The only issue in the proceeding is whether the applicant’s medical evidence requires the conclusion that she ought to have been granted the pension from an earlier date. On Friday 10 July 2019 I made orders to bring that matter on for a rapid hearing. I relieved the applicant of any obligation to do anything apart from put the medical evidence she relied upon before me. The orders were as follows:

 1.    Order 10 made on 30 April 2019 be vacated.

2.    The Applicant file an affidavit by 12.00 noon on Thursday, 18 July 2019 annexing the medical reports referred to in paragraphs 2 and 3 of her statement of claim.

3.    The matter be listed for hearing on Friday, 19 July 2019 at 10.15 am for hearing of prayer 1 and, if it arises, prayer 3 of the originating application.

4.    The Applicant be granted leave to appear at the hearing by telephone if requested.

 5.    The rules of evidence be dispensed with at the hearing.

 6.    Either party may apply to vary these orders on 48 hours’ notice.

2    The matter was fixed for hearing on Friday 19 July 2019. On Tuesday 16 July 2019 my chambers were contacted by the applicant and informed that she wished to discontinue the proceeding. I caused the Respondent to be consulted about its attitude to the discontinuance and was informed that it consented to that course. I then granted the applicant leave to discontinue and, because she is self-represented, I sought to ease her burden by dispensing with the filing of a notice of discontinuance. I therefore made the following orders:

THE COURT ORDERS THAT:

1.    Pursuant to r 26.12(2)(c) of the Federal Court Rules 2011 (Cth) (‘FCR’), the applicant be granted leave to discontinue the proceeding.

2.    Pursuant to FCR 1.34, the applicant not be required to file a notice of discontinuance.

  3.    The proceeding be discontinued.

THE COURT NOTES THAT:

4.    Discontinuance of the proceeding was requested by the applicant by email to the Associate to Justice Perram on 16 July 2019 and the respondent consented to the discontinuance of the proceeding.

3    On Wednesday 17 July 2019 the applicant contacted my chambers to ask that she be permitted to withdraw the discontinuance. She said that she had only asked for discontinuance because she had come out of surgery and was overwhelmed by the situation. I accept that. Because I dispensed with the need to file a notice of discontinuance the situation is perhaps a little unusual. However, in principle I do not think that the principles which govern whether I should undo the discontinuance which I permitted should be any different to the principles which apply where it is sought to set aside a notice of discontinuance. Those principles were considered in Moussa v Minister for Immigration and Border Protection [2015] FCA 1280. There are four (Moussa at [13]):

1.    A notice of discontinuance may be set aside where it is shown that its filing constituted an abuse of process.

  2.    It may also be set aside where its filing was procured by fraud or duress.

  3.    There is a jurisdiction to set such a notice aside to avoid substantial injustice.

4.    None of these jurisdictions is engaged where a party knowingly and voluntarily files a notice of discontinuance.

4    I do not think that the applicant’s discontinuance was an abuse of process nor was it procured by fraud or duress. I do not think that any substantial injustice arises because the applicant is free to file a fresh proceeding. The prejudice she suffers is—assuming she is liable for it—the filing fee. I therefore do not think that any jurisdiction to permit the discontinuance is enlivened. It is not necessary therefore for the purposes of the fourth principle to determine whether the applicant’s discontinuance was the result of voluntary action or whether that should be seen as vitiated by her condition after surgery.

5    I therefore decline to set aside the orders providing for the closing of this file.

6    When these reasons were first prepared I was aware from other matters involving the applicant that she was generally desirous of ensuring that the Court’s reasons in her various matters not be published. My initial inclination was that I should publish the reasons but I thought I should afford her the opportunity, if she desired it, of applying that the reasons not be published. The applicant was therefore notified by the Registry that her application to withdraw her discontinuance was refused, attached the above reasons for the refusal and permitted her time to apply not to have the reasons for that conclusion published. I arranged for the judgment not to be published on the Court’s website in the interim.

7    During the course of yesterday in the usual back and forth of emails between myself, my staff and the Registry I was provided with several of the applicant’s emails. One of these I forwarded to my associate with only this remark: ‘*sigh*’. Unfortunately, this email was sent through my own error to the applicant. It is useful to set out the whole email chain for context:

From:    NSW Registry

To:    Parties

Date:    10 July 2019 11:23 AM

Dear Parties

I refer to the above matter which was before Justice Perram for a case management hearing this morning.

As discussed at this morning’s case management hearing, his Honour intends to list the matter for hearing on Friday, 19 July 2019 at 10.15 am for hearing on the s 39B relief for entitlement to the Disability Support Pension claimed in this proceeding. His Honour will hear the claim for damages at a subsequent hearing if the Applicant succeeds on the s 39B relief.

His Honour has requested that the Applicant file the medical reports dated April 2017, May 2017 and July 2017 referred to in her statement of claim by Thursday, 18 July 2019 at 12.00 noon in advance of the hearing.

His Honour has therefore made the following orders (which are attached):

 1.    Order 10 made on 30 April 2019 be vacated.

2.    The Applicant file an affidavit by 12.00 noon on Thursday, 18 July 2019 annexing the medical reports referred to in paragraphs 2 and 3 of her statement of claim.

3.    The matter be listed for hearing on Friday, 19 July 2019 at 10.15 am for hearing of prayer 1 and, if it arises, prayer 3 of the originating application.

4.    The Applicant be granted leave to appear at the hearing by telephone if requested.

 5.    The rules of evidence be dispensed with at the hearing.

 6.    Either party may apply to vary these orders on 48 hours’ notice.

Order 6 anticipates that if any of the above orders are not suitable (particularly the hearing date), either party may contact the Court two days in advance to ask for the orders to be amended. Justice Perram has indicated that he would prefer to hear the matter next week as his Honour has a large five-week trial commencing the week after.

Please confirm receipt of this email and confirm that the dates for the hearing and the filing of evidence referred to in the email have been noted.

Kind regards

--

From:    Respondent

To:    NSW Registry

Date:    10 July 2019 12:30 PM

Dear Registry

Thank you for your email. I acknowledge receipt of the orders and confirm that the dates for the hearing and the filing of evidence referred to in the email have been noted.

Regards

--

From:    Applicant

To:    NSW Registry

Date:    16 July 2019 11:47 AM

Dear Federal Court

I refer to this matter.

No person should be placed in a situation whereby they need to argue this.

I have other matters I need to focus my energy on, so I simply will withdraw this matter.

The Respondant of course has the right to do the correct thing in the meantime and backpay myself my entitlement.

I hope no other person is ever placed in a similar position.

Thankyou to His Honour for trying to escalate this issue regardless.

--

From:    NSW Registry

To:    Parties

Date:    16 July 2019 2:53 PM

Dear Parties

I refer to [the Applicant]’s email below.

Prior to Justice Perram considering the Applicant’s request to withdraw the proceeding, would the Respondent indicate whether it consents to the Applicant’s request?

Kind regards

--

From:    Respondent

To:    NSW Registry

Date:    17 July 2019 10:00 AM

Dear Registry,

We are instructed that the Respondent would consent to [the Applicant] filing a notice of discontinuance in accordance with to r 26.12 of the Federal Court Rules 2011 (Cth) in order to bring an end to the proceeding.

Regards,

--

From:    NSW Registry

To:    Parties

Date:    17 July 2019 11:02 AM

Dear Parties

Justice Perram has granted leave for the applicant to discontinue this proceeding. Please find attached the orders made today by Justice Perram.

Pursuant to the orders, the hearing listed on Friday, 19 July 2019 at 10.15 am has been vacated and the file has been closed.

Kind regards

--

From:    Applicant

To:    NSW Registry

Date:    17 July 2019 11:12 AM

Dear Federal Court

Thankyou - however, may I ask [the Respondent’s solicitor] simply ask his Client for the backpay of the amount sought, so that this withdrawl, is done in good faith, and not because, the stress of this matter, made me too ill.

The reason I had to withdraw this action, is that the stress of such, has made me unwell, Nd I was in hospital again yesterday, and require surgery, in 2 weeks.

Thankyou

Kind regards

--

From:    Justice Perram

To:    Applicant

Date:    17 July 2019 11:34 AM

*sigh*

8    Understandably the applicant is upset by this last email as she is entitled to be. The Registry then received this email:

From:    Applicant

To:    NSW Registry

Date:    19 July 2019 9:07 AM

Dear Registry

I refer to this matter.

On Tuesday, I was required to attend hospital for a consultation with my surgeon, about upcoming surgery, of which I am concerned about.

After such, and leading to such, I felt very overwhelmed, leading me to say I could no longer continue this matter, however, the following day, after some rest, decided I should in fact proceed.

In any event, I received the email below direct from Justice Perram, of which I found in appropriate, and have not responded.

I have asked Justice Perram not to publish his reasons for my matter, because medical reasons are confidential.

In light of the inappropriate comment below, I ask that request be respected.

Thankyou

Kind regards

9    The Registry then responded in these terms:

From:    NSW Registry

To:    Parties

Date:    19 July 2019 9:56 AM

Dear [Applicant]

His Honour is in receipt of your email of 19 July 2019. The email which was sent by his Honour to you was sent in error and was intended for one of his staff and not for you. His Honour apologises for this mishap.

Despite that, however, his Honour is not of the view that the reasons should not be published. The reason for this is that the business of the Court is conducted in public, the judgment is anonymised and does not identify you and, in any event, the judgment does not describe your medical condition. At worst the reasons reveal that an unidentified person has an unidentified condition. There is no basis upon which that could be suppressed.

Kind regards

10    Most recently, the applicant has said this:

From:    Applicant

To:    NSW Registry

Date:    19 July 2019 10:08 AM

I do not appreciate being treated like a fool by His Honour, and the email below reveals he treated this serious matter as a joke.

I therefore, request he have the decency, to respect my privacy, and not publish in appropriate and private material.

If he was ever in the position, whereby he was denied, a basic enittilement of which was needed to keep a roof over my head, and stay well, he would likely understand, this matter as he needed to,

He obviously did not have that understanding per his email.

I ask the above request is facilitated.

Thankyou

Kind regards

11    As a human, I can well understand the sentiment that underpins the applicant’s suggestion that since I have insulted her the least I can do is not to publish the reasons for judgment. Were the matter governed by my desire to make amends for my error, I would readily accede to her request.

12    Unfortunately, other interests are in play. The business of the Court is conducted in public. Section 17(1) of the Federal Court of Australia Act 1976 (Cth) (‘the Act’) directs that the business of the Court ‘shall be exercised in open court’. The business of the Court quintessentially includes the public release of its judgments. It is an important feature of the rule of law that, so far as is possible, litigation is conducted in public and that the spectre of secret trials is avoided. Justice must not only be done, it must be seen to be done. Consequently, if it is not seen, it is not done.

13    Despite that, the Court undoubtedly has the power to supress its reasons where the interests of justice require it. The written reasons for judgment are a ‘document’ and hence are ‘information’ within the meaning of s 37AA of the Act. An order that the Court’s reasons for judgment not be published is therefore a ‘suppression order’ within the meaning of s 37AA. Hence the Court has the power to make the order applicant seeks under s 37AF. The grounds upon which it may make such an order are set out in s 37AG:

37AG    Grounds for making an order

(1)    The Court may make a suppression order or non‑publication order on one or more of the following grounds:

(a)    the order is necessary to prevent prejudice to the proper administration of justice;

(b)     the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;

   (c)    the order is necessary to protect the safety of any person;

(d)    the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).

(2)    A suppression order or non‑publication order must specify the ground or grounds on which the order is made.

14    The applicant’s claim that the reasons should not be published does not fall with (1)(b) for it has nothing to do with national or international security; it does not fall within (1)(c) for nobody’s safety is threatened by these reasons; and it does not fall within (1)(d) because whilst the applicant says that she will be embarrassed by the release of her personal information, this is not a criminal proceeding concerned with a sexual offence so that it cannot apply. Cases under (1)(a) are difficult to predict in advance. One well-known situation where that ground is used is where a party suing to protect the confidentiality of a trade secret seeks to have the trade secret suppressed in the proceeding. But the applicant’s claim to be entitled to back payment of a disability support pension has none of those characteristics. Consequently, the order simply cannot be made.

15    In any event, I do not accept that the applicant’s personal information is contained in these reasons for judgment so the premise on which her argument rests is entirely faulty. She is only identified in these reasons by a pseudonym by reason of an order of another judge made at an early time. Since the reasons do not identify the applicant they cannot embarrass her and I struggle to understand how she thinks that they can.

16    Even if she were identified (which she is not), these reasons do not disclose any confidential medical information about her. All that it is revealed is that there are some medical reports but about what is not disclosed and that she had unidentified surgery. These reasons therefore do but disclose that an unidentified person has an unidentified medical condition and has recently had an unidentified operation. There is not the slightest basis on which I could properly suppress these reasons in that circumstance. I therefore refuse the application that the Court not publish its reasons.

17    I have added paragraphs [6]-[17] to the initial set of reasons for judgment sent to the parties yesterday because I think it important that what has occurred should be publicly available.

Associate:

Dated:    19 July 2019