Federal Court of Australia

Bayles by his litigation representative Bayles v Nationwide News Pty Limited (No 3) [2020] FCA 1397

ORDERS

THE COURT ORDERS THAT:

1.    Subject to order 2 below and until further order, pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the ground that it is necessary to prevent prejudice to the administration of justice, there be no disclosure by publication or otherwise of any of the following parts of the affidavit of Duncan Mark McKenzie Fine (Fine affidavit) sworn on 23 September 2020:

a.    paragraph 7;

b.    annexure DF-1;

c.    paragraphs 24-26 of annexure DF-2;

d.    the addresses of the parties to annexure DF-3 and their signatures.

2.    Order 1 does not prevent disclosures to and between the following people:

a.    judges of the Court;

b.    necessary Court staff and transcription service providers;

c.    the parties; and

d.    the legal representatives of the parties in this proceeding, including in-house counsel of the first respondent.

3.    For the purpose of rule 2.32 of the Rules, the Fine affidavit is confidential.

4.    The first respondent prepare and provide to the Court a version of the Fine affidavit which may be available for inspection pursuant to rule 2.32.

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

REASONS FOR JUDGMENT

KATZMANN J:

1    This is a defamation action. The applicants allege that they were defamed by the respondents in a series of tweets published on the personal Twitter account of the second respondent, Miranda Devine. The background is briefly described in my reasons for approving the settlement of the first applicant’s claim: Bayles v Nationwide News Pty Ltd (No 2) [2020] FCA 1393. The application for approval was supported by an affidavit of Duncan Mark McKenzie Fine, Special Counsel in the firm of solicitors acting for the applicants in the proceeding. With the support of the applicants, the first respondent (News), applied for an order under s 37AF of the Federal Court of Australia Act 1976 (Cth) for non-publication of the affidavit including the annexures on the ground set out in s 37AG(1)(a) of the Act, namely, that it is “necessary to prevent prejudice to the proper administration of justice”.

2    The order sought was too broad. Section 37AE provides that, in deciding whether to make an order of this kind, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. Save for the details of the bank account, which appear in paragraph 7, and putting to one side for the moment the annexures, there is no necessity for an order concealing the contents of the affidavit. The bank account details, however, should be suppressed. It would bring the administration of justice into disrepute if the Court were to publish such sensitive financial information.

3    The first of the annexures (DF-1) is the deed of release, which details the terms of settlement. I am satisfied that it is necessary to prevent prejudice to the administration of justice that it not be published. The reference in s 37AG(1)(a), like its predecessor, s 50, is a reference to “the public interest that the Court should endeavour to achieve effectively the object for which it was appointed: to do justice between the parties”: Australian Broadcasting Commission v Parish (1980) 29 ALR 228 at 234; (1980) ATPR ¶40-154 at 42,196; 43 FLR 129 at 133 (Bowen CJ). Where the subject-matter of the proceeding is a secret process or the relief sought is an injunction to restrain the publication of confidential information, publication would render the proceeding nugatory. In such a case, disclosure would prejudice that object: Parish 29 ALR 228 at 233; (1980) ATPR ¶40-154 at 42,196; 43 FLR at 133. This case is not of that ilk. Nevertheless, the parties entered into the deed of release on the basis that its terms would be confidential. It is likely that they also entered into negotiations with this expectation.

4    Further, there is “a very significant public interest in the settlement of litigation”, reflected in the privilege attaching to without prejudice communications entered into for the purpose of negotiating a settlement and s 131 of the Evidence Act 1995 (Cth): Reynolds v JP Morgan Administrative Services Australia Ltd (No 2) (2011) 193 FCR 507 at 514 (Rares J). It could well discourage settlements and thereby defeat the public interest if the Court were to permit publication of the terms of settlement despite the agreement of the parties that they be kept confidential.

5    Moreover, the deed does not only deal with the settlement of the dispute concerning Quaden. It also deals with the settlement of Ms Bayles’ claim. That settlement does not require the approval of the Court and, but for the fact that both claims were brought in the same proceeding and settled by the one document, would not otherwise have come before the Court. Ms Bayles and News are entitled to keep the terms of their settlement confidential and it seems to me that it would not be possible to protect the confidentiality of their agreement by effecting redactions to the document.

6    The second annexure is a memorandum of advice from an independent lawyer, Vasilios (Bill) Kalantzis (DF-2). To the extent that his advice includes references to the terms of settlement I accept that it should not be published. But that accounts for only three paragraphs. I am not satisfied that it is necessary to prevent prejudice to the administration of justice that the rest of the advice not be published. Ultimately, News did not press the application over the rest of the advice. Nor did the applicants. Through her solicitor, however, Ms Devine submitted that two additional subparagraphs of Mr Kalantzis’ advice should not be published because they “may [be] understood to suggest” two things which Ms Devine denies and, since the action settled before defences were filed, Ms Devine has not had the opportunity to formally deny the allegations. Ms Devine submitted that it was necessary that these subparagraphs not be published in order to facilitate the early settlement of proceedings. I reject the submission.

7    The person seeking the order bears the onus of persuading the Court to make the order and the onus has been described as “a very heavy one”: Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 (Edelman J) at [8]; C7A/2017 v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 70 at [14]). Ms Devine has not discharged the onus. First, I cannot see how the inference Ms Devine apprehends may be drawn from the subparagraphs in question is reasonably open. Second, even if it were, at most publication might cause Ms Devine some embarrassment or annoyance and that is not enough to make out the ground in s 37AG(1)(a): Australian Competition and Consumer Commission v Air New Zealand Ltd (No 12) [2013] FCA 533 at [7] (Perram J). No other ground was invoked.

8    The third annexure (DF-3) was a deed establishing a trust fund in Quaden’s name and for his benefit into which the proceeds of settlement are to be paid. There was strictly no need to put the trust deed itself before the Court. I am not persuaded that it is necessary to prevent prejudice to the proper administration of justice that the whole of the deed not be published. On the other hand, publication of the addresses of the parties together with their signatures would make them vulnerable to identity theft and put the trust fund, amongst other things, at risk. On this basis I am satisfied that it is necessary to prevent prejudice to the proper administration of justice that that information be suppressed. In correspondence to the Court Mr Fine suggested that there was another basis. The suggestion was that the order is necessary to protect the applicants’ safety. That is the ground covered by s 37AG(1)(c). But no specific application was made invoking that provision. More importantly, there was no evidence to support it.

9    It follows that an order should be made under s 37AG(1)(a) prohibiting from publication paragraph 7 of Mr Fine’s affidavit; annexure DF-1 (the deed of release); paragraphs 24 to 26 inclusive of annexure DF-2 (the memorandum of advice from Mr Kalantzis); and the addresses of the parties and their signatures in annexure DF-3.

Associate:

Dated:    28 September 2020