Federal Court of Australia
Hells Angels Motorcycle Corporation (Australia) Pty Limited v Redbubble Ltd (No 3)  FCA 1530
QUD 403 of 2020
Date of judgment:
6 December 2021
INTELLECTUAL PROPERTY – consideration of redactions to be made from a judgment
National Practice Area:
Copyright and Industrial Designs
Number of paragraphs:
18 October 2021
Solicitor for the Applicant:
Broadley Rees Hogan
Counsel for the First Respondent:
Mr R Cobden SC with Ms E Bathurst
Solicitor for the First Respondent:
HELLS ANGELS MOTORCYCLE CORPORATION
DATE OF ORDER:
THE COURT ORDERS THAT:
1. The redactions to be made from the reasons for judgment in Hells Angels Motorcycle Corporation (Australia) Pty Limited v Redbubble Ltd (No 2)  FCA 1246 are those set out in the Confidential Schedule.
2. The Confidential Schedule to these reasons is redacted.
3. Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers.
1 These brief reasons are concerned with the resolution of contested views between the parties as to those parts of the text of reasons for judgment of the Court (published only to the parties) that ought to be redacted so as to preserve the confidentiality of information discussed in those reasons in relation to the first respondent’s application for leave to amend its defence (the “principal judgment”).
2 The principal judgment, the whole of which is presently suppressed, is Hells Angels Motorcycle Corporation (Australia) Pty Limited v Redbubble Ltd (No 2)  FCA 1246.
3 The guiding principle is this.
4 Courts conduct proceedings in public, not behind closed doors and when judicial power is exercised, especially the judicial power of the Commonwealth, reasons for deciding why particular orders are made, or not made, are explained not only to the parties but also the public because the public interest is best served by publishing, either orally or in writing, reasons explanatory of the exercise of public power.
5 That principle, however, must be balanced with another principle that also serves the public interest which is the community’s interest in the preservation and protection of confidential information necessarily disclosed to courts to enable justice to be done in each particular individual proceeding.
6 There is little to be gained by seeking to explain the particular context of the present contest between the parties, in these reasons. I will simply identify the portion of the text of the principal judgment to be redacted as part of the balancing exercise just described. Before doing so, I note the concern identified by Redbubble that as between Redbubble and Hells Angels Motorcycle Corporation (“HAMC US”) at least, there is said to be a prohibition upon disclosure of the terms of a particular document. Redbubble contends that it would find itself in breach of a confidentiality obligation in the document if the Court failed to surprise all references to the particular document, as well as its terms. So that there can be no doubt about the matter from the Court’s perspective, Redbubble acted entirely consistently with its perceived obligation not to disclose the document or its terms by only putting forward (in the context of the application to amend its defence in the present proceeding) any reference to the document (or its terms) on the footing that orders would first be made that all such references would be treated, for the purposes of the hearing and determination of the application, as confidential. Those orders were made in order to enable the parties to address issues raised by the material going to the application for leave to amend. The application was heard and determined and reasons published consistent with the earlier obligation although the reasons remained suppressed so as to enable the parties to express views about which parts of the text ought to be redacted so as to preserve the confidentiality of the relevant information. They have now done so but are unable to reach agreement.
7 The decision, as to where the balance earlier described lies, is a matter for the Court to determine. In so determining that matter, as an exercise of judicial power, Redbubble is not acting in contravention of any obligation of confidence cast upon it by the document. The Court is acting so as to serve and balance two competing principles and interests.
8 The matters to be redacted from the principal judgment are set out in a Confidential Schedule. The Confidential Schedule to these reasons will itself be redacted and published only to the parties. The principal judgment as redacted in accordance with the comments in the Schedule will be published in the ordinary way.