Federal Court of Australia

CAP21 v Administrative Appeals Tribunal [2021] FCA 1146

ORDERS

THE COURT ORDERS THAT:

1.    The parties be granted access on the usual terms, including to inspect, uplift or copy, the documents produced to the Court by the first respondent pursuant to order 2 made by the Court on 3 August 2021.

2.    Orders 3 to 9 made by Wigney J on 3 August 2021 be vacated.

3.    The matter be listed for a case management hearing on 5 October 2021.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    The applicant in this matter, who has been given the pseudonym CAP21, has applied for judicial review of a decision of the Administrative Appeals Tribunal to refuse to make a confidentiality order pursuant to s 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth), the effect of which would have prohibited the disclosure and publication of her name and identifying details. CAP21 was not a party to the proceeding in the Tribunal, though she appeared as a witness. The applicant in the Tribunal proceeding was Mr Gregory Haywood and the respondent was Comcare. Mr Haywood opposed CAP21’s application for a confidentiality order in the Tribunal. He has been joined as a respondent to this proceeding.

2    The issue the subject of this judgment arises because, on the application of CAP21, this Court ordered the Tribunal to produce to the Court all documents that were before it in connection with its decision to refuse to make a confidentiality order. The Tribunal complied with the order made in this Court. Mr Haywood, however, has opposed CAP21 being granted access to the documents produced to this Court by the Tribunal. He provided lengthy written submissions in support of that opposition. While those submissions range across a variety of topics, the nub of his contention insofar as access is concerned would appear to be that those documents may contain personal information about him and that, as CAP21 was not a party to the proceeding in the Tribunal, she should not be given access to the documents. The context for that submission is that Mr Haywood’s application in the Tribunal involved serious allegations against CAP21, who was Mr Haywood’s supervisor in his place of employment.

3    CAP21 submitted that, as a party to this proceeding, she had the right, pursuant to r 2.32(1) of the Federal Court Rules 2011 (Cth), to inspect “any document in the proceeding” except a document in respect of which a claim for privilege has been made or upheld. More fundamentally, she submitted that, as a general rule, documentary material before a decision-maker is considered relevant for the purposes of judicial review of the decision: Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 23 FCR 536 at 539-540. As for Mr Haywood’s concerns about privacy and the fact that the documents may contain personal information, CAP21 pointed out that the proceeding in the Tribunal were heard in public and that no confidentiality order was made.

4    I have carefully considered Mr Haywood’s submissions in opposition to the grant of access to the documents produced to the Court by the Tribunal. I can well understand Mr Haywood’s sensitivities and antipathy towards CAP21 which appears to be the driving force behind his opposition to her being given access to the documents. The fact remains, however, that CAP21 has applied for judicial review of the Tribunal’s decision to refuse to make a confidentiality order and is therefore prima facie entitled to be given access to the documents that were relevantly before the Tribunal in respect of that decision. The documents that the Tribunal was required to produce to the Court were expressly restricted to those that were before it in connection with that decision. They therefore do not include all of the documents that were before the Tribunal in respect of the principal proceeding in the Tribunal.

5    There is also nothing to suggest that, to the extent that the documents produced by the Tribunal include any personal information concerning Mr Haywood, that information is particularly sensitive or confidential such that CAP21 should be denied access to it. Moreover, the mere fact that CAP21 is able to access the documents does not mean that the documents will necessarily be tendered, let alone made available to the public at large. They will not be able to be accessed or inspected by anyone who is not a party to this proceeding. CAP21 will be bound by an implied undertaking not to use the documents otherwise than for the purposes of this proceeding: Harman v Home Department State Secretary [1983] 1 AC 280.

6    Mr Haywood’s opposition to the grant of access to the documents also appears to be somewhat at odds with the approach he took to the proceeding in the Tribunal. As CAP21 pointed out, the proceeding in the Tribunal was conducted in public and no confidentiality order was sought by Mr Haywood or made by the Tribunal. The Tribunal published a very lengthy decision which contained much personal information about Mr Haywood and his allegations against CAP21. Mr Haywood also opposed CAP21’s application for a confidentiality order. The Tribunal’s decision in respect of that application, which is the subject of this proceeding, noted that Mr Haywood had submitted that “[j]ustice must be done and must be seen to be done” and that “[a]ll members of the public are entitled to have equal access to Tribunal hearings”.

7    In all the circumstances, I propose to grant the parties, including CAP21, access to the documents produced by the Tribunal to the Court pursuant to order 2 of the orders made by the Court on 3 August 2021.

8    CAP21 has submitted that the delay occasioned by the issue about access to the documents produced by the Tribunal has meant that it has not been possible for her to comply with a number of the procedural orders that were made on 3 August 2021. She has accordingly proposed that those orders be vacated and that the proceeding be listed for a further case management hearing at the earliest opportunity. That would appear in all the circumstances to be an appropriate course to take.

9    It should finally be noted that it would appear that Mr Haywood has not filed a notice of appearance. Nor has he actively participated in the proceeding to date, save for his opposition to CAP21 being permitted to inspect the documents produced by the Tribunal. He is, of course, not obliged to take any active role in the proceeding. It is open to him, if he so chooses, to file a submitting appearance. If, however, he does propose to participate in the proceeding, he should appear at the next case management hearing, either in person or by a legal representative.

Associate:

Dated:    22 September 2021