Federal Court Rejects Application for Confidentiality Orders on Personal Health Data

OUTCOME: Refused

Federal Court of [COMPANY] as trustee for [RESPONDENT] v [NAME] [2023] FCA 402 File number: SAD 147 of 2022

Judgment of: [NAME] of judgment: 2 May 2023

Catchwords: PRACTICE AND PROCEDURE – Application for suppression and non-publication orders pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) – sensitive personal information of third-parties – whether order necessary to prevent prejudice to the proper administration of justice – application refused

Legislation: Federal Court of Australia Act 1976 (Cth) ss 37AE, 37AF, 37AG, 37AI

Cases cited: Australian Competition and Consumer Commission v [NAME] [2015] FCA 607 [COMPANY] v [COMPANY] (No 2) [2020] FCA 257 [NAME] v Secretary of State for the Home Department [1983] 1 AC 280 Hearne v Street [2008] 235 CLR 125 [NAME] v Australian Crime Commission (2010) 240 CLR 651 [NAME] v Secretary, Department of Education, Skills and Employment [2021] FCA 1359 [NAME] v State of Victoria [2022] FCA 590 [NAME] v Australian Broadcasting Corporation [2021] FCA 863 [NAME] v [COMPANY] (No 26) [2022] FCA 46

Division: General Division

Registry: South Australia

National Practice Area: Commercial and Corporations

Sub-area: Commercial Contracts, Banking, Finance and Insurance

Number of paragraphs: 18

Date of last submission: 30 March 2023

Date of hearing: Determined on the papers

Solicitor for the [RESPONDENT]: [APPELLANT]

[NAME]: [RESPONDENT] 147 of 2022

BETWEEN: [COMPANY] (ACN [PHONE]) AS TRUSTEE FOR [RESPONDENT] [RESPONDENT]

AND: [NAME] (ACN [PHONE]) Respondent

order made by: [NAME] OF ORDER: 2 May 2023

THE COURT ORDERS THAT:

1. The application for an order under s 37AF of the Federal Court of Australia Act 1976 (Cth) is refused. 2. The affidavit of [NAME] dated 30 March 2023 is to be placed on the Court's file; however, there will be a notation on the file that annexure JMA7 is "not to be released except by leave granted by a judge". Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

[NAME]: 1 In this case the applicants seek various relief against the respondent arising from what they assert is discrimination against the second [RESPONDENT] arising from his refusal to be vaccinated against COVID-19. The matter is set down for a final hearing commencing on 31 July 2023. Among the many other steps that have been taken in the proceeding to date, the respondent has given discovery in accordance with orders made by the Court. 2 On 2 March 2023, at the request of the respondent, I made interim orders under s 37AI of the Federal Court of Australia Act 1976 (Cth) (the Act) prohibiting the publication or disclosure of 18 documents which had been discovered by the respondent and identified in the list of documents accepted for filing on 9 February 2023. On 10 March 2023, the respondent notified my chambers that it was only pressing its application for ongoing orders in relation to four of the documents, two of which related to personal health information of individual employees and two of which related to information of [NAME] in relation to the steps those organisations had taken to address COVID-19 within their workplaces. At that time, it was also anticipated that the respondent would be making further discovery. On 15 March 2023, by consent, I made orders setting aside the earlier order and substituting a new order under s 37AI in relation to the four documents for which confidentiality was now sought. I required material in support of the application for a continuing order to be filed by 30 March 2023. 3 On 30 March 2023 the respondent provided to my chambers an affidavit, annexing the proposed ongoing orders, and written submissions. An order is now sought preventing the publication or other disclosure of five of the documents discovered by the respondent. They do not include the documents relating to [NAME], as the organisations in question have notified the respondent that they do not seek ongoing non-publication orders to protect their commercial interests. The documents in relation to which orders are now sought include two of the documents which were subject to the orders made on 15 March, together with a further three documents which have since been identified. The concern that is raised in relation to all of these documents is that they include private health information in relation to individuals who (apart from being employed by entities affiliated with the respondent) have no connection with the proceedings. 4 The applicants did not oppose the order sought and the respondent did not seek to add to its written submissions. I have determined the issue on the papers. 5 Copies of the five documents in question were annexed to the affidavit referred to above. They are copies of internal emails of the respondent with their attachments. The emails were sent in late 2021 and early 2022 and concern the arrangements that were to be made in the respondent's workplace in relation to a small number of employees or contractors who were unable to wear a mask or did not wish to be vaccinated (or disclose their vaccination status). The attachments include medical certificates and other documents from one of those people's doctors. 6 The only grounds on which a suppression or non-publication order may be made are those set out in s 37AG(1) of the Act. The only ground said to be relevant here is that contained in para (a): "the order is necessary to prevent prejudice to the proper administration of justice". 7 The term "necessary" is included in each paragraph of s 37AG(1). It sets a high bar, reflecting the importance of the principle of open justice (which is expressly referred to in s 37AE). It has been observed in relation to s 37AG(1) and its statutory predecessors that "'necessary' is a strong word", to be distinguished from merely convenient reasonable or sensible ([NAME] v Australian Crime Commission (2010) 240 CLR 651 at [30]-[31]), and that "embarrassment, inconvenience, annoyance or unreasonable or groundless fears will not suffice" (Australian Competition and Consumer Commission v [NAME] [2015] FCA 607 at [30] ([NAME])). 8 Despite the stringency of the test, this Court has been prepared to make confidentiality orders in relation to sensitive information that could have a commercial value or could be used by competitors of a party to undermine its interests (see eg [COMPANY] v [COMPANY] (No 2) [2020] FCA 257 ([NAME] J)). The view has been taken that it would be contrary to the interests of the administration of justice for the Court's process to result in the value of such information being destroyed or diminished, as this could lead to a loss of confidence in the Court or open the way to abuse. 9 The information with which the present application is concerned is in a different category. It is very unlikely to have any commercial value, and the prospect of it being used against any of the individuals concerned is slight. Its disclosure could well be said to be likely to lead only to "embarrassment, inconvenience [or] annoyance" to those persons. Nevertheless, it is information of a kind which people in Australia properly expect to be treated with sensitivity and to be kept confidential, unless there is a good reason for its disclosure. 10 In [NAME] v Secretary, Department of Education, Skills and Employment [2021] FCA 1359 ([NAME]), [NAME] J considered an application to suppress the names of the [RESPONDENT] in the proceedings and her child. The subject matter of the case was a decision by a [NAME] to deny benefits to the [RESPONDENT] because the child did not meet vaccination requirements. His Honour carefully reviewed the authorities and determined that the proposed orders could not be justified under s 37AG(1)(a) or under para (c) (which is made out where the order is "necessary to protect the safety of any person"). His Honour was not satisfied that there was anything inherent in the nature of the proceeding which indicated that persons would be deterred from bringing such proceedings if their privacy were not protected (at [61]). The fact that the [RESPONDENT] herself had commenced proceedings without any assurance that suppression orders would be made tended to the contrary. The argument therefore boiled down to a desire on the part of the [RESPONDENT] to avoid embarrassment to herself and her child which, his Honour held, was understandable and reasonable but insufficient to meet the terms of s 37AG(1)(a). 11 One of the cases referred to in [NAME] was [NAME] v Australian Broadcasting Corporation [2021] FCA 863 ([NAME]) where, at [84], [NAME] referred to "sensitive information about a person's health" among examples of information which, if not protected from disclosure, might diminish public confidence in and access to justice. This was given as an example of the ways in which the administration of justice might be prejudiced, and as an aspect of what her Honour described as the recognition, in ss 37AE – 37AL of the Act, that it is sometimes necessary that information filed or given in a proceeding not be disclosed or published in order for justice to be done. This was part of a general discussion about the Federal Court Rules 2011 (Cth) and their relationship to the Part of the Act under which suppression and non-publication orders are made, rather than reasoning leading to an order under s 37AF (ultimately, her Honour made an order permitting material to be removed from the court file rather than a suppression or non-publication order). It was essentially for this reason that [RESPONDENT] J did not regard [RESPONDENT] as supporting the [RESPONDENT]'s position in [NAME]. 12 [NAME] was relied on in [NAME] v State of Victoria [2022] FCA 590 ([NAME]) where Mortimer J, as her Honour then was, declined to make orders suppressing the identities of 34 current and former school students who were alleged to have engaged in conduct including assaults, taunts, Nazi salutes, racist assaults, battery and bullying of the applicants. The students were not parties, and only one was proposed at the time of the suppression application to be called as a witness. In reaching the conclusion that there was insufficient justification to make the orders sought, her Honour emphasised two matters of particular relevance here. First, at [50] (and referring to [NAME] v [COMPANY] (No 26) [2022] FCA 46), that the Court is entitled to expect reporting will be responsible, fair and reasonable. Secondly, at [20]-[24], that cogent evidence is required to establish a justification for orders departing from the principle of open justice. Her Honour found there the evidence created no probative basis for the Court to apprehend that the media would start reporting the full names of the 34 students. The embarrassment or distress caused to them could be ameliorated to some extent by using only their first names in the trial and the ultimate reasons for judgment. 13 [NAME], the present case raises somewhat different considerations to [NAME] because the information sought to be protected is not sensitive information relating to any party to the proceeding. It concerns individuals who have no connection with the proceeding, either as parties or (so far as I am presently aware) as witnesses. The prospect that people may be deterred from pursuing their rights in the courts as a result of concern about private information of other people being disclosed is, realistically, very small. The interests of the administration of justice would therefore not be prejudiced, in that way, by disclosure of the information in question here. 14 The other possibility that needs to be considered is that the administration of justice could be brought into disrepute or suffer a loss of public confidence if the privacy of people who are in effect innocent bystanders were to be compromised. In my view, such an outcome, if repeated over time, would be detrimental to the reputation of the Court and the administration of justice. While the filing of sensitive information about a third-party for a collateral purpose could well involve an abuse of process (and may be prevented for that reason), this is far from always the way in which the Court comes to hold such information, as the present situation shows. It is difficult to justify, as an aspect of open justice, the disclosure of sensitive personal information concerning a person who has no connection with the subject matter of a proceeding. 15 However, it does not follow that prevention of such disclosure in the present case is "necessary" to prevent "prejudice to the proper administration of justice". That expression appears to refer to the actual administration of justice by the courts, not to the regard in which the courts are held by members of the public. Potential reputational damage to the Court would need to be demonstrably substantial before it could be said to be prejudicial to the "proper administration of justice". There is no evidence from which it can be inferred that discontent arising from the occasional revelation of private information would make the proper administration of justice more difficult. Section 37AG does not call for a balancing of competing interests or a broad assessment of where the public interest lies. It permits a suppression or non-publication order to be made only when the Court is satisfied that such an order is "necessary" for identified purposes. As noted earlier, that expression sets a high bar. 16 A further reason why the proposed order may not be "necessary to prevent prejudice to the proper administration of justice" is that there is as yet no certainty that the present proceeding will lead to the information in question here being disclosed let alone published. The documents in question may not be put into evidence; and if they are not, they will (at least in the normal course) not become available by way of any grant of access to the Court's file. The applicants and their [APPELLANT] [NAME] are entitled to inspect the documents but, as a result of the implied undertaking are not entitled to use them for any purpose ulterior to the proceeding: [NAME] v Secretary of State for the Home Department [1983] 1 AC 280; Hearne v Street [2008] 235 CLR 125 at [107]­[108]. Should the documents be tendered in the proceeding by either party, a sensible approach on the part of their [APPELLANT] [NAME] could allow redacted versions to go into evidence, thereby protecting the identities of the persons referred to. 17 For these reasons, I will not make the order sought under s 37AF. 18 The affidavit referred to above will be placed on the Court's file so that it becomes part of the record of the Court. However, I will also make an order designed to prevent the accidental disclosure of the annexure to that affidavit containing copies of the documents in relation to which the orders were sought. If copies of the same documents are relied on in open court, any requests for access to those copies will be dealt with in the usual way. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the [NAME] [NAME].

Associate: Dated: 2 May 2023