Armaguard v Cochrane [2003] QIRC 12 (2003) 172 QGIG 892

892 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 14 February, 2003 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 679 – application for order – confidential material Armaguard and Paul Cochrane (No. B1779 of 2002) COMMISSIONER BLADES 3 February 2003 Application for suppression of evidence – Section 679 Industrial Relations Act 1999 – Application for in camera hearing – Public interest that proceedings be open to the public – Circumstances justifying an order not made out – Embarrassment not sufficient – Application dismissed. DECISION Paul Cochrane has filed an application for reinstatement in respect of his dismissal from employment with Armaguard. The hearing is scheduled for 17 March 2003. Armaguard has made application for orders pursuant to section 679(5) and section 679(6) of the Industrial Relations Act 1999 (the Act), directing that the -- 1 of 3 -- 14 February, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 893 evidence given, documents discovered, records tendered, things exhibited and the transcript of the proceedings shall: (a) be withheld from release or search; (b) not be published to any person except the President, the Vice President, a Commissioner or a legal representative of the parties; (c) be used for no other purpose other than the proceedings; (d) at all times be held in a confidential and secure fashion; and (e) upon completion of the proceedings that part of the materials originating from the Respondent be returned to the Respondent’s legal representative. Application is also made for orders pursuant to section 679(5) and 679(6) of the Act, directing that the proceedings be held in camera. The first part of the application is so wide that it probably encompasses what is sought in the second part in regard to proceedings being held in camera. The application is neither opposed nor supported by Mr Cochrane. The basis of the application is that the evidence and other material likely to be produced and argued during the proceedings before the Commission will be of a highly sensitive nature, and will canvass (a) the safety standards and policies adopted by the respondent and (b) the respondent’s security policies and procedures. Mr Murdoch SC submitted that the respondent is the nation’s leading cash transportation and processing organisation and has to adopt the very highest levels of procedures and protocols to secure the activities that it undertakes commercially and in particular to protect not only the cash but more importantly the personnel involved in its operations. It is said that the material will contain information which effects the security of cash and the safety of the staff employed at Armaguard branches and that publication could seriously undermine the security and the health and safety of the staff and others who may be called to assist at Armaguard branches. Mr Murdoch pointed out that the case is about Cochrane’s role in the fulfilment of his duties when it was discovered that a certain amount of cash had gone missing although it is not alleged that Cochrane actually took any cash. It is alleged that Cochrane, an area manager, was aware that in several respects the company’s express protocols were habitually not followed. These are highly sensitive matters, so it is submitted, and disclosure is not in the public interest. There is a very strong principle that justice must be administered in an open forum and not behind closed doors. In Ex parte The Queensland Law Society Incorporated (1984) 1 Qd. R. 166, McPherson J at 169 said: “Statute apart, and disregarding applications heard in Chambers, the rule is that judicial proceedings must be conducted in open court from which members of the public cannot in general be excluded. In Scott v Scott (1913) A.C. 417, where this was recognised, an exception was held to exist in circumstances where, unless the court sat in camera, justice could not be attained. There may have been some differences among their Lordships about the precise extent, or perhaps it was about particular applications, of that exception; but the only examples mentioned in the speeches in that case are proceedings concerning trade secrets and those rare cases where it is practically certain that a witness will not testify unless the hearing proceeds in camera or his identity is concealed. Victims of blackmail are the principal beneficiaries of the latter exception for the reason that, without affording them such protection, it is unlikely that crimes of that nature could ever be prosecuted; and suppression of identity has sometimes been extended to a witness giving evidence in proceedings concerning official secrets.”. Section 679(1) of the Act relates to records of a person’s trade secrets or the financial position of a party or witness. That provision is not being relied upon. Section 679(5) provides: “(5) The court, commission or registrar may direct– (a) a report, or part of a report, of proceedings in an industrial cause not be published; or (b) evidence given, records tendered or things exhibited in proceedings for an industrial cause be withheld from release or search. (6) The direction may prohibit the publication, release or search absolutely, or except on conditions ordered by the court, commission or registrar. . . . (8) The direction may be given if the court, commission or registrar considers– (a) disclosure of the matter would not be in the public interest; or (b) persons, other than parties to the cause, do not have a sufficient legitimate interest in being informed of the matter.”. Thus under s. 679(1) applying s. 679(4), the suppression is automatic; under s. 679(5), the exercise of the discretion to suppress depends upon ss. (8). It was submitted that directions made pursuant to s. 679(5) and (6) may extend beyond evidence relating to trade secrets or the financial position of a party or witness, relying upon Queensland Nurses Union of Employees v QCCI & Ors (2000) 165 QGIG 131 and that submission is accepted. Reliance was placed upon an order for confidentiality which was made by Hall CC (as he then was) in the Cash-in-Transit Enquiry (1995) 151 QGIG 1497 when he ordered that the whole of the proceedings of the enquiry relating to the whole of the Industry be conducted in camera. The Chief Commissioner said: “I am satisfied that unless severe restrictions are imposed upon access to and publication of the submissions, witness statements and exhibits, and unless much of the inquiry is conducted in camera, this inquiry will become the vehicle by which existing safety arrangements within the cash-in- transit industry are set at nought and the participants therein are exposed to grave and substantial risk. The purpose of the enquiry is, of course, enhancement of safety in the cash-in-transit industry.”. It must surely be acknowledged that a commission of enquiry dealing with, as it was, adequacy of government and industrial regulation, training and licensing procedures for workers, employment and recruitment procedures, safety practices and procedures and the adequacy of equipment including firearms, body protection and armoured vehicles and the role of parties in enhancing safety is a far different proceeding to an unfair dismissal application. The Chief Commissioner cited J v L & A Services Pty Ltd (No 2) (1995) 2 Qd. R. 10 which was also relied upon by Mr Murdoch and wherein the leading case of Scott v Scott was applied. In J v L & A Services, the Supreme Court of Queensland dealt with an application by sufferers of the HIV virus that their identity in an action against their employer be suppressed. The application was refused, it being held that although there was a public interest in avoiding or minimising disadvantages to private citizens from public activities, paramount public interests in the due administration of justice, freedom of speech, a free media and an open society required that Supreme Court proceedings be open to the public and able to be reported and discussed freely. It -- 2 of 3 -- 894 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 14 February, 2003 was in my view, significantly for the purposes of this case, also held that while a limited exclusion or restraint was permissible if necessary to ensure that such a proceeding was fair or if it was necessary in the interests of a party or witness in a particular proceeding, information was not to be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm or other collateral disadvantage. The Court at p. 18 cited Sir John Donaldson M.R in R v Chief Registrar of Friendly Societies, Ex parte New Cross Building Society (1984) Q.B 227 who reformulated the test derived from Scott and said: “It is only if, in wholly exceptional circumstances, the presence of the public or public knowledge of the proceedings is likely to defeat that paramount object that the courts are justified in proceeding in camera. These circumstances are incapable of definition. Each application for privacy must be considered on its merits, but the applicant must satisfy the court that nothing short of total privacy will enable justice to be done. It is not sufficient that a public hearing will create embarrassment for some or all of those concerned. It must be shown that a public hearing is likely to lead, directly or indirectly, to a denial of justice.”. There is no doubt, as was submitted, that the broad common law principles mentioned in the cases are subject to legislative intervention as has occurred with the provisions to be found in s. 679(8) of the Act – Q.N.U. v QCCI and Ors (supra). The Full Bench in that case also referred to J v L & A Services Pty Ltd and doubted whether s. 679(8)(a) entitled the Commission in the public interest, to prohibit publication of the name of a nursing home. However, the Full Bench went on to say that there was an additional basis for a direction to prohibit publication, i.e. if the Commission considers that persons, other than parties to the cause, do not have a sufficient legitimate interest in being informed of the matter. The Commission went on to issue an order prohibiting publication of the name of the nursing home on the basis that the allegations against it, which had not yet been responded to, had the potential to cause the residents and their relatives great stress. Qantas Empire Airways Ltd v Australian Air Pilots Association & Others (1954-55) 80 CAR 108 was also relied upon. However, in the Conciliation and Arbitration Act 1904-1952, there was no restriction placed by Parliament on the exercise of the power to prevent publication as there is in s. 679(8) of the Act. In any event, what was considered in that case was the real harm that might be done to the airline industry by the misreporting and distortion of the facts of the case. I have perused the Schedule to the application of Paul Cochrane. He makes allegations of “dual control/access” to the safe not always being enforced because of staff shortages. He alleges that he was stood aside because of a security breach after it was determined that money had gone missing. Armaguard, in its response to the application, points to the strict procedure of “dual control” of the vault. It points to self-audit reports by Paul Cochrane confirming dual control having been signed off. It alleges that Paul Cochrane was derelict in his responsibility to ensure that company policies and procedures were adhered to, was fraudulent in falsifying audit reports, had left the branch with no armed person in attendance and exposed the respondent to potential significant loss. The evidence and the allegations made by Mr Cochrane may be rejected at the hearing. They may, if accepted, prove to be an embarrassment to the respondent because of its alleged failure to adopt either foolproof or proper procedures to protect the cash or to train or properly supervise its staff. Nothing about those allegations involves the safety of anyone, or effects cash security or the safety of the staff employed by Armaguard and there is nothing that I can identify as highly sensitive information. There is certainly nothing I can identify as comprising exceptional circumstances. There are no trade secrets being given away, there is no disclosure about where cash is hidden, or for that reason, how much cash might be held on premises (if it could be said that such disclosures were relevant at all), no maps of where cash might be located – matters which may be able to be the subject of limited prohibition orders. What the company seeks to be kept confidential is that it is alleged (inferentially at least) to have been negligent in its approach to cash security and employee management and training. In my view these are not appropriate matters that fall within the power to be found in s. 679(8)(a) or (b). There is nothing to show that persons other than the parties, i.e. the public, do not have a sufficient legitimate interest in being informed. The common law principles referred to, in my view, are as equally applicable in these proceedings as they are in civil and criminal proceedings. They clearly demand a public hearing of the case. In my view, the justification for an order prohibiting publication needs more than a mere allegation. There is an onus resting upon Armaguard to show why it is not in the public interest for public disclosure to be made or why the general public should not be informed (or able to be informed) and it has not done so. If this application were granted, every employer whose alleged misdeeds might prove to be embarrassing would be entitled to an in camera hearing. The application is dismissed. B.J. BLADES, Commissioner. Hearing Details: 2003 30 January Appearances: Mr J. Murdoch, Senior Counsel, instructed by Blake Dawson Waldron, for Armaguard. Mr D. O’Gorman, Counsel, instructed by Lees Marshall Warnick, for P. Cochrane. -- 3 of 3 --