FEDERAL COURT OF AUSTRALIA

Llewellyn v Nine Network Australia Pty Limited [2006] FCA 836

COURTS AND JUDGES – access to pleadings by non-parties – O 46 r 6 Federal Court Rules - principles of open justice – s 50 Federal Court of Australia Act 1976 (Cth) – confidentiality – administration of justice

Held – interim injunction to prevent access by non-parties dissolved and costs awarded in favour of John Fairfax Publications Pty Ltd and Nationwide News Pty Ltd

Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199 followed

Batistatos v The Roads and Traffic Authority of New South Wales [2006] HCA 27 applied

Coco v The Queen (1994) 179 CLR 425 followed

Dickason v Dickason (1913) 17 CLR 50 applied

D'Orta-Ekenaike v Victorian Legal Aid (2005) 79 ALJR 755 applied

eisa Ltd v Brady [2000] NSWSC 929 disapproved

Home Office v Harmon [1983] 1 AC 280 referred to

John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 cited

John Fairfax and Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465 applied

John Fairfax Publications Pty Ltd v Rich [2002] NSWSC 198 disapproved

Mirror Newspapers Limited v Harrison (1982) 149 CLR 293 applied

Re Wakim; Ex parte McNally (1999) 198 CLR 511 referred to

Scott v Scott [1913] AC 417 applied

Federal Court Rules O 46 r 6

Federal Court of Australia Act 1976 (Cth) s 50

MARK LLEWELLYN v NINE NETWORK AUSTRALIA PTY LIMITED

NSD 1221 OF 2006

RARES J

30 JUNE 2006

SYDNEY

THE COURT ORDERS THAT:

1.         The interim order made on 29 June 2006 that the Statement of Claim in these proceedings not be available for inspection by any person up to and including 30 June 2006 be dismissed.

2.         The respondent pay the costs of Nationwide News Pty Limited and John Fairfax Publications Pty Ltd of the application for access under O 46 r 6 made yesterday and today to the Court.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1                     In this matter proceedings were commenced on 23 June 2006 by the filing of an application and statement of claim by Mr Llewellyn.  Mr Llewellyn was formerly employed by Nine Network as a journalist in various positions until he became Director of News and Current Affairs in late October 2005.  He claimed in his statement of claim that his employment had certain contractual features and that certain representations had been made to him which may have given rise to causes of action under the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1987 (NSW) relating to alleged misleading and deceptive conduct by Nine Network either globally or in relation to his employment. 

2                     The statement of claim is some 85 paragraphs in length and occupies 18 pages.  It relates a number of events that are alleged to have occurred including conversations which Mr Llewellyn had with persons in Nine Network which were said to give rise to the jurisdiction of this court to determine the dispute which Mr Llewellyn sought to bring before it.

3                     Apparently Mr Llewellyn and Nine Network resolved their differences as I was informed yesterday from the bar table late on 23 June 2006.  And on 26 June, late in the afternoon, the solicitor for Mr Llewellyn faxed a letter to the Registrar of the court indicating that the parties had agreed in principle on terms to resolve the proceedings and that after settlement in short minutes of order would be filed to bring the proceedings to an end.  So far as I am aware no such short minutes of order have been filed and the proceedings are still on foot in this court.  The letter continued:

‘We request that the material filed not be released to any third party unless the parties to the proceedings are first given an opportunity to be heard on such application.  If necessary the parties will approach the court to seek orders in similar terms if so required by the Rules.’  (original emphasis)

4                     Following a communication by the Registrar the parties then submitted a document entitled ‘Orders’ dated 27 June 2006 in the following terms:

‘By Consent the Court orders:

1.         Application and the Statement of Claim filed in these proceedings remain confidential.

2.                  That the Court file be marked confidential.’

5                     When the matter was placed in my docket I indicated to the parties by a communication through my associate that I was not minded to make any such order.  My associate sought an indication from the parties as to what they proposed to do.  And, when an application was made by a journalist from ‘The Australian’ newspaper, who I understand is employed by Nationwide News Pty Limited, to inspect the file so far as it was available pursuant to O 46 r 6 of the Federal Court Rules, I caused the matter to be listed urgently yesterday for that application to be dealt with having regard to the expressed desire of the parties for confidentiality.

6                     The matter was returned very promptly and Mr Llewellyn was represented by his solicitor, Mr Laxon.  Nine Network was represented by senior and junior counsel and both Nationwide News Pty Limited and John Fairfax Group Pty Limited, well known media organisations, were represented by senior and junior counsel.  Argument proceeded during which I expressed certain preliminary difficulties with the concept that the rules of the court should be interfered with by claims for confidentiality which had not been made out with appropriate justification.

7                     Senior counsel for Nine Network submitted me that the word ‘confidential’ in O 46 r 6(1) could be read as being more limited than relating to the kinds of confidences which the court protects under the exceptions to the principle of open justice.  Those principles were identified by Viscount Haldane, Lord Chancellor, in Scott v Scott [1913] AC 417 at 437-438.  His Lordship explained that the first two of those classes dealt with cases of wardship and what, was in those days called lunacy and today may be called, mental illness.

8                     The third class was where the effect of the publicity would destroy the subject matter of the proceedings.  His Lordship said that class stood on a different footing:

‘There it may well be that justice could not be done at all if it had to be done in public.  As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration.’

9                     Those exceptions, as identified by his Lordship, have been accepted by courts in Australia ever since, see Dickason v Dickason (1913) 17 CLR 50 at 51, where Barton ACJ for the High Court of Australia said:

‘… there is no inherent power in a Court of justice to exclude the public, inasmuch as one of the normal attributes of a Court is publicity, that is, the admission of the public to attend the proceedings.  Power to exclude may be conferred expressly by law but there is no law which empowers us to proceed otherwise than with the ordinary publicity of a Court of justice.  On the contrary, secs. 15 and 16 of the Judiciary Act show clearly an intention on the part of the legislature that the jurisdiction of this Court should be publicly exercised.

Order 46 rule 6 provides relevantly that any member of the public:

‘… may search in a registry for, and inspect, a document in proceedings that is specified in subrule (2), unless the Court or a Judge has ordered that the document is confidential.’

10                  Those documents include an application and a pleading or particulars of a pleading.  Yesterday Mr Bannon SC for Nine Network agreed that there was nothing in the application in this matter which could possibly be confidential and I ordered that it be made available immediately.

11                  That was an important concession because until then it had been the desire of the parties to the proceedings to conceal material that could not possibly be the subject of a claim for confidentiality.  Where the rule has provided that documents must be in the opinion of the court or a judge confidential I am of the opinion that that imports confidentiality of the nature to which s 50 of the Federal Court of Australia Act 1976 (Cth) (‘the Act’) refers.  Section 50 provides that:

‘The Court may, at any time during or after the hearing of a proceeding in the Court, make such order forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth.’

12                  That power appears to reflect the inherent power of every superior court and the implied power of every court to prevent abuse of its own processes and to protect the administration of justice and, in the case of superior courts, to protect the administration of justice not merely in the proceedings before the court but generally:  see John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 364-365.

13                  In Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 at [9] Gleeson CJ and Gummow, Hayne and Crennan JJ said that:

 ‘… what amounts to an abuse of the court process is insusceptible of a formulation comprising closed categories.  Development continues.’

14                  Their Honours referred to the grant of an anti-suit injunction and said that the counterpart of the power of the court to prevent an abuse of its processes was the power of the court to protect the integrity of those processes once set in motion. 

15                  The right of any suitor to approach a court of justice is a fundamental right in a free society.  The right is protected by the power of the court to commit persons who interfere with that right for contempt.  In Coco v The Queen (1994) 179 CLR 425 at 436 Mason CJ, Brennan, Gaudron and McHugh JJ said:

‘In Raymond v Honey Lord Bridge of Harwich stated that ([1983] 1 AC 1 at 14)  a citizen's right to unimpeded access to the courts can only be taken away by express enactment.’

16                  This court has proceedings initiated in it either by the filing of either an application and affidavit or an application and a statement of claim.  The rules of the court have been devised in a way that ensures that its processes are transparent.  Where it is necessary to prevent persons knowing of the bases upon which the court has had its jurisdiction invoked, O 46 r 6(1) enables a judge to decide that material is truly confidential and ought not otherwise to be made available.

17                  It was argued yesterday by Nine Network that I should follow the approach taken by a number of single judges in the Equity Division of the Supreme Court of New South Wales as embodied in the judgment of Barrett J in John Fairfax Publications Pty Ltd v Rich [2002] NSWSC 198 at [12]-[15] and in particular at [14].  In essence, his Honour followed an earlier decision of Santow J in eisa Ltd v Brady [2000] NSWSC 929 that the release, prior to the trial of an action, of pleadings that had been filed by parties created ‘a danger of prematurity’.  Barrett J relied on what Santow J had said ([2000 NSWSC 929 at [18]):

‘It is at the trial that public and press will ordinarily have full and unfettered opportunity to be present and hear what is said, and where pleadings can be understood in their proper context.  It may well then be possible to release a copy of the pleadings without danger of prematurity, though the circumstances would need still to be considered.’

18                  Barrett J continued ([2002] NSWSC 198 at [14]) that that was a reflection of the principle of open justice in relation to proceedings conducted in court. 

19                  Barrett J referred to Santow J’s reasoning that in a defamation context documents had a particular status when they were made available by the court from its files as distinct from those made available by a party to an outsider in that they attracted a common law privilege which would not otherwise attach.  He approved Santow J’s remark ([2002] NSWSC 198 [15]):

‘Clearly if the court were thus to make available to the press prematurely affidavits or pleadings containing damaging allegations not read in court or sufficiently described in open court, this may severely and unfairly prejudice the subject of these damaging allegations with no necessary redress in defamation.’  ([2000] NSWSC 929 [20])

20                  Reliance was then placed on a principle in the decision of the House of Lords in Home Office v Harmon [1983] 1 AC 280 in which, over a very powerful dissenting speech by Lord Scarman with whom Lord Simon of Glaisdale agreed, a bare majority of the House of Lords came to a view which may not necessarily represent the law in this country as to the availability of documents which have been tendered and relied in open court at a time after the hearing had finished.  I need not refer further to that question.

21                  Significantly, the rules of the Supreme Court of New South Wales are not the same as those in O 46 r 6.  That court had a rule in SCR Part 65 rule 7, which provided that:

‘A person may not search in a registry for or inspect any document or thing in the proceedings without the leave of the Court.’

22                  This court has clearly taken a very different approach in its rule and has not left it to the parties to keep confidential that which has at least been relied on as the process by which proceedings in this court are initiated.  Parties know that when they file in this court the rules provide that applications and pleadings are, unless the court orders they be kept confidential, available for inspection.  If there is a reason at the time of the filing of documents that any such document, ought not be available for inspection, O 46 r 6(1) provides a means for it to be kept confidential.  The need for that exceptional course ought to be established on evidence at the time it is filed.  Of course there may be cases of urgency or necessity where it is not always possible to do so and the court is able, pursuant to its inherent powers and the powers under s 50 of the Act, to accommodate such situations.  No such situation was made apparent in this case.

23                  In my view the approach taken by Santow J and Barrett J is fundamentally erroneous.  It misunderstands the function of fair reports of proceedings and the availability to all persons of the right to be able to make fair reports of proceedings that have been initiated in courts.  Ordinary members of the public are well aware of the difference between allegations made in courts and findings made by courts.  People who make allegations or cause the processes of courts to be invoked do so in the circumstance that they are asking for the judicial power of the state or, here, the Commonwealth to be applied to the resolution of their dispute. 

24                  The importance of the exercise of judicial power with those consequences was explained by Gleeson CJ, Gummow Hayne and Hayden JJ in D'Orta-Ekenaike v Victorian Legal Aid (2005) 79 ALJR 755 at 761 [31]-[33].  Their Honours observed [32] that:

‘Judicial power as an element of the government of society and its aims are wider than and more important that the concerns of the particular parties to the controversy in question, be they private persons, corporations, polities or the community as personified in the Crown or represented by a Director of Public Prosecutions.  No doubt the immediate parties to a controversy are very interested in the way in which it is resolved.  But the community at large has a vital interest in the final quelling that controversy. That is why reference to the ‘judicial branch of government’ is more than a mere collocation of words designed to instil respect for the judiciary.  It reflects a fundamental observation about the way in which this society is governed.’

25                  The controversy which Mr Llewellyn brought to this court was required to be pleaded.  It was.  It may or may not have been quelled.  I have been informed that it has been but no orders have been filed in the court bringing these proceedings to an end. So far as the court is concerned they are current and pending.  The allegations in these proceedings are matters which I have been informed from the bar table have attracted a fair degree of public interest and have involved litigation brought by Nine Network against Mr Llewellyn on his employment contract in the Supreme Court of New South Wales.

26                  In Mirror Newspapers Limited v Harrison (1982) 149 CLR 293 at 300-301 Mason J said:

‘…there is now a strong current of authority supporting the view that a report which does no more than state that a person has been arrested and has been charged with a criminal offence is incapable of bearing the imputation that he is guilty or probably guilty of that offence.  … The ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty.  Although he knows that many persons charged with a criminal offence are ultimately convicted he is also aware that guilt or innocence is a question to be determined by a court, generally by a jury, and that not infrequently the person charged is acquitted.’

27                  I am of opinion that a similar principle is well known to members of the community in respect of civil litigation.  The proposition that untested allegations in civil proceedings are somehow to be shielded from public view merely because they are untested allegations and could only possibly be properly understood in the context of a fully contested hearing is, in my opinion, not one that can sit with the principle of open justice or the right of anyone fairly to report proceedings in a court of justice.

28                  The originating process and pleadings in proceedings initiated in a court of justice such as this court with rules such as O 46 r 6, are intended by the rules of the court to be available to the public.  That is so that they may see what is the controversy brought to the court for resolution by it in its ordinary function as a court constituted under Chapter III of the Constitution.  That function is to resolve controversies that arise under laws of the Commonwealth or under the Constitution itself and to determine finally all matters in dispute between the parties.  Hence, the jurisdiction of this court to deal finally with the whole of the matter between parties even though only a part of it, and perhaps only a small part of it, involves an issue which is a ‘matter’ within the meaning of ss 75 and 76 of the Constitution:   see Re Wakim;  Ex parte McNally (1999) 198 CLR 511.

29                  It was suggested by senior counsel for Nine Network yesterday that what appears on page 7 in the statement of claim was a confidential matter involving a private communication within the Nine Network companies and was only of prurient interest to those seeking to exercise their right to inspect under O 46 r 6.  That was put as a substantive basis for the resistance to the right of access being afforded and a suggestion that the material was confidential within the terms of r 6(1).

30                  The allegation the subject of that submission was that on or about 11 January 2006 Mr Llewellyn was directed by an agent of Nine Network to prepare a news story attacking Mr Kerry Stokes of Channel 7 in relation to a news story on Channel 7 which in turn had attacked Mr James Packer.  Mr Llewellyn alleged that he refused to follow that direction.  There was then another allegation that a week later he was directed by Mr Chisholm to terminate a Mr John Lyons' employment due to what was alleged to be poor performance.  Mr Lyons was at that time employed in the position of an executive director of the Sunday program. 

31                  Where there is a large licensed commercial television broadcasting company conducting it affairs in circumstances where it is alleged by a senior officer who had the title, at the time, of Director of News and Current Affairs at Nine, that he was being required to prepare a news story having a particular purpose in order to retaliate for an attack on another person, in my opinion that is not simply what might be described as a private matter or one which was one in which other people within the community might have simply a prurient interest. 

32                  It was alleged, in the particulars given to par 31, that that conversation occurred between Mr Llewellyn and Mr John Alexander who was the Chief Executive Officer and Managing Director of another company, Publishing and Broadcasting Limited.  In Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199 at 226 [42] Gleeson CJ said that:

‘There is no bright line which can be drawn between what is private and what is not.  Use of the term “public” is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private.  An activity is not private simply because it is not done in public.  It does not suffice to make an act private that because it occurs on private property, it has such measure of protection from the public gaze as the characteristics of the property, the nature of the activity, the locality and the disposition of the property owner combine to afford. Certain kinds of information about a person such as information relating to health, personal relationships or finances may be easy to identify as private, as may certain kinds of activity which a reasonable person applying contemporary standards of morals and behaviour would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary person of ordinary sensibilities is in many circumstances a useful practical test of what is private.’

33                  In my opinion the way in which public broadcasting licences are conducted and the responsibility of those in senior positions within them as to their conduct is a matter is capable of being of genuine public interest and is not such as would ordinarily be regarded as entirely private. 

34                  I am unable to accept without any evidence to support the submission of Nine Network that what is contained in par 31 on p 7 of the statement of claim is simply a matter of prurience.  I accept that it is at this stage an untested allegation, as indeed any fair report of the statement of claim or the proceedings would need to make clear for it to carry the privilege against being liable for publication of defamatory matter.  That is so even if it is now the law under the uniform Defamation Acts 2005 and 2006 of the various States and Territories that corporations employing more than 10 persons cannot sue for defamation.  Necessarily, corporations act through individuals and those individuals, to the extent that their conduct is impugned in material reported about what goes on in courts, can be identified and can raise causes of action if there is unfair and inappropriate reporting.  But it is a fundamental of a free society that there be the opportunity of members of the public to see and know what goes on in courts, including pursuant to the rules of this court, what allegations are made in open court.

35                  In John Fairfax and Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 481 McHugh JA identified the substantial importance of the right to publish fair and accurate reports of court proceedings as a common law right the enjoyment of which fell within the common law presumption of immunity from statutory interference.  That presumption is of course reinforced by the availability of the statutory defence of fair report.

36                  Those who report untested allegations in court do so every day when they report what happens in Local and Magistrates Courts, when persons are first brought before those courts charged with serious criminal offences.  Generally, all the allegations that are made on behalf of the prosecution are untested allegations about some of the most serious things that can be said of persons.  Those persons stand daily before such courts charged with crimes which might be thought to be minor or as major as crimes like murder, sexual assault or those of a terrorist nature.  Members of the public, as Mason J made clear in Mirror Newspapers v Harrison (1982) 149 CLR at 300-301, understand that it is fundamental to the open administration of justice that, as a routine, courts have allegations made in them which are untested at stages in the course of proceedings.  At the end of the day the ordinary reasonable member of the community understands that it is the responsibility of the court, be it a judge or jury, to make findings about those allegations and then to decide cases.  Ordinary members of the community understand that those matters are part of the administration of justice.  Members of the media generally have a similar understanding.

37                  I am of opinion that the material put to the court for the purposes of seeking to have access to the application and statement of claim denied under order 46, rule 6, was utterly inadequate to justify that claim.  I note that, when offered the opportunity over night to either put on evidence or further submissions, the parties to the proceedings chose, and they may well have done so for other reasons, not pursue that matter.   However, in seeking to restrict the rights of inspection under O 46 r 6 given to every member of the public, including the media applicants who appeared before the court yesterday and today, the parties to the proceedings caused the court to convene yesterday on an urgent basis because the right of access to the court's files was being interrupted.

38                  Such matters are, in my opinion, matters which ought to be dealt with promptly and urgently. Interferences with the principle of open justice are matters which are of fundamental importance to the administration of justice and require prompt adjudication. 

39                  The application for an order of confidentiality has not today been pursued.  An undertaking as to damages was offered yesterday by only Nine Network.  Had no undertaking been offered I would have granted a right of access then and there.  I am of opinion that the costs which have been properly incurred by the two news organisations who applied to me yesterday for access to the file ought be recovered by them. Although there was no formal application on notice made, the circumstances of the case were such as required urgency.  The parties were all able to be represented by competent legal practitioners and to present arguments of some complexity and assistance to the court.

40                  I am of opinion that the power of the court to make an order for costs in favour a person who has applied, when it is sought to deny them access under O 46 r 6, is clear.  It is appropriate that such an order for costs be made.  The two news organisations only seek an order as against Nine Network.  I am of opinion that I should make an order that Nine Network pay the costs of the application yesterday and today to the court.

Associate:

Dated:              30 June 2006