Federal Court of Australia

Lehrmann v Network Ten Pty Limited (Livestream) [2023] FCA 1452

ORDERS

THE COURT ORDERS THAT:

1.    The application for orders as proposed by the first respondent, annexed to the submissions provided to the Court on 9 November 2023, be refused.

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

REASONS FOR JUDGMENT

(Delivered ex tempore)

LEE J:

1    Sir Gordon Hewart was Attorney-General from November 1921 in the peacetime coalition government. He very much wanted to become Lord Chief Justice despite having no judicial experience (and having a temperament memorably described by a contemporary, C.P Harvey, as lacking “the one quality that should distinguish a judge: that of being judicial”).

2    By reason of the existence of what has been described as “a peculiar, and thoroughly undesirable convention” by Graeme Williams KC (in his amusing work A Short Book of Bad Judges (Wildy, Simmonds & Hill Publishing, 2013) (at 37)), the Attorney-General had a first right of refusal to the post upon it falling vacant. The famously wily Prime Minister, David Lloyd George, belatedly engineered it for him by initially appointing an ancient puisne judge (Lord Trevethin) to the post, subject to procuring an undated but signed letter of resignation, which was triggered only after Lord Trevethin read of his resignation as Lord Chief Justice in The Times newspaper in March 1922: Williams (at 35–36).

3    Despite this inauspicious start, and later being described by Professor F.R.V Heuston in his Lives of the Lord Chancellors (Clarendon Press, 1987) (at 603) as “perhaps the worst Lord Chief Justice since the seventeenth century”, Lord Hewart CJ was responsible for one of the most famous aphorisms known to the law and one that has been repeated and paraphrased on innumerable occasions: “it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”: R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 (at 259).

4    Although the principle was stated memorably by his Lordship, it was not anything new. It reflected a fundamental aspect of the common law system also evident in the observation of Lord Atkinson in Scott v Scott [1913] AC 417 (at 463) that a trial held in public and accessible to the public was the “best security” for public confidence in the impartiality and efficiency of the justice system.

5    It is well-established that the openness of the judicial branch of government in this country is a basic democratic right which the courts should actively support: see John J Doyle AC KC, ‘The Courts and the Media: What Reforms are Needed and Why’ (1999) 1 University of Technology Law Review 25, 26–27. The public interest in open justice informs central aspects of common law procedure and is enshrined in numerous substantive rules: James J Spigelman AC KC, ‘The Principle of Open Justice: A Comparative Perspective’ (2006) 29(2) University of New South Wales Law Journal 147.

6    Specifically, in this and other courts, the open justice principle finds reflection in the requirement to conduct hearings in public and to allow the public to have access to the evidence adduced. To the extent suppression and non-publication orders are required to be made, they are, in this Court, subject to strict conditions and the overriding requirement for the Court to have regard to the “primary objective of the administration of justice”, being “to safeguard the public interest in open justice”: s 37AE of the Federal Court of Australia Act 1976 (Cth) (FCA Act). In a number of recent judgments, some judges, including myself, have deprecated the persistence of practitioners, particularly in commercial matters, seeking swingeing suppression and non-publication orders: see, for example, R&B Investments Pty Ltd (Trustee) v Blue Sky Alternative Investments Limited (Administrators Appointed) (in liq) (Confidentiality Orders) [2022] FCA 1443; Deputy Commissioner of Taxation v State Grid International Australia Development Company Limited (Application for Non-Publication Orders No 2) [2022] FCA 719. There also seems to be a persistent notion that mere embarrassment and stress are enough to warrant the making of such an order, although that is simply not the law: John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 (at 142–143 per Kirby P).

7    Consistent with the need to facilitate and encourage public access to justice, in recent times, and particularly since the COVID-19 pandemic, it has been a regular practice of this Court to livestream proceedings perceived to be of public interest. This development reflects the fact that principles of open justice do not have a fixed content (see, for example, Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 (at 531–532 per French CJ)), and that the ways in which courts deliver justice should evolve to meet the challenges of the day: see Chief Justice Anne Ferguson, ‘Essential Briefing on the State of the Profession’ (Law Institute of Victoria, 22 March 2023).

8    On a practical level, the livestreaming of proceedings of public interest recognises that interested persons may be unable, for geographical or other reasons, to attend the Court physically, and that practical facilities for large numbers of persons to observe hearings in person are limited.

9    In accordance with this now established practice, and in accordance with the Court’s usual processes, an administrative view was reached that this hearing was of sufficient public importance to warrant a livestream. Out of an abundance of caution, I raised my preliminary judicial view that livestreaming was appropriate and invited any submissions, if any party wished to be heard to the contrary. It was against this background that an objection was raised by the first respondent, Network Ten Pty Limited (Network Ten), and a proposal for alternative orders put forward. This different course was proposed notwithstanding all hearings conducted in this proceeding to date (including Mr Lehrmann’s application for an extension of time to bring proceedings pursuant to s 56A of the Limitation Act 1969 (NSW)) have been livestreamed.

10    Network Ten’s alternative orders would impose a regime whereby journalists, instructing solicitors and other interested persons may be granted access to the livestream upon making an application to the Court and providing an undertaking not to disseminate or record the proceedings.

11    It is well to set out the terms of the proposed orders:

THE COURT NOTES THAT:

The trial of this proceeding is not to be livestreamed on the YouTube channel of the Federal Court of Australia.

AND THE COURT ORDERS THAT:

1.    Access to an audio visual link to the trial of this proceeding is granted to the parties and the legal representatives of the parties.

2.    Access to an audio visual link to the trial of this proceeding may be granted to any other person, upon application to Justice Lee and upon the applicant delivering to the Associate to Justice Lee a signed undertaking in the form of the Annexure to this Order.

12    The undertaking is in the following terms:

I, [name and address of party], undertake to the Federal Court of Australia that I will not:

1.    disseminate the audio-visual link to the trial of this proceeding to anyone other than with the prior leave of the Court;

2.    record or cause to be recorded, in any manner, including by audio-visual or audio recording, photography or the making of screenshots, the proceedings of the court;

3.    publish or cause to published any recording of the proceedings of the court.

For the avoidance of doubt, the above undertakings do not limit the entitlement of the undertaking party to publish or cause to be published a fair and accurate report of the proceedings of the court.

13    Four reasons are advanced in support of the proposed orders.

14    First, it is said the circumstances to be examined in the trial “have received an inordinate amount of public attention over several years, including on social media”, which has been “intrusive, offensive and no doubt distressing to its targets”. It is “inevitable” members of the public will breach the Court’s prohibition on making recordings and screenshots, and the mere concern of this reality may have a “distorting effect” on participants in the trial. Risks to the personal safety and wellbeing of participants in the trial are said to extend to counsel.

15    Secondly, the fact the proceeding concerns an alleged sexual assault is said to be highly relevant. In criminal trials involving prescribed sexual offences, courts often adopt special procedures, including taking the evidence of a complainant in camera, unless the court otherwise directs: see, for example, s 291(1) of the Criminal Procedure Act 1986 (NSW).

16    Thirdly, there is said to be an “inherent risk” that an uncontrolled livestream of the trial could prejudice Mr Lehrmann’s right to a fair trial in any future criminal proceedings. To this end, Network Ten relies upon Mr Lehrmann having been recently identified publicly as having been charged with two sexual offences in relation to events alleged to have taken place in Toowoomba, Queensland, in October 2021.

17    Fourthly, Network Ten submits this is not a case in which, in the absence of a livestream, the public would not be properly informed of developments, as the trial is likely to be widely reported and scrutinised.

18    Despite these arguments, I have reached the clear view that the administration of justice is best served and facilitated by the Court adopting the now common course of livestreaming the hearing of this case and rejecting Network Ten’s proposed alternative orders. In explaining why, it is appropriate to make the following points.

19    First, the orders proposed by Network Ten assume the worst. Open justice should not yield to hypothetical risks of abuse by bad actors. The Court is entitled to operate, at the very least initially, upon the assumption members of the public will obey the law. Moreover, if this expectation is dashed, the law is amply equipped to respond.

20    The law of contempt provides protection for those who have duties or functions to perform in relation to the administration of justice. It is a criminal contempt improperly to interfere with a person fulfilling such a duty or performing such a function. The role of the law of contempt in this area is, with respect, usefully explained by Professor David Rolph in chapter six of his recently published work, Contempt (Federation Press, 2023).

21    In the case of witnesses, our legal system cannot compel a person to give evidence and afford the witness no protection where he or she is victimised or vilified for doing so: Chapman v Honig [1963] 2 QB 502 (at 513 per Lord Denning MR). The Court’s protective role extends to the abuse of witnesses before and after giving evidence, for “there can be no greater contempt than to intimidate a witness before he gives his evidence or to victimise him afterwards for having given it”: Attorney-General v Butterworth [1963] 1 QB 696 (at 719–721 per Lord Denning MR). The privilege of a witness to give evidence without fear or favour is no light thing: European Asia Bank AG v Wentworth (1986) 5 NSWLR 445 (at 450 per Kirby P).

22    Similarly, those assisting the Court in discharging its judicial function are protected. Conduct directed towards counsel and solicitors may also interfere with the administration of justice and constitute contempt: see, for example, Principal Registrar, Supreme Court of New South Wales v Katelaris [2001] NSWSC 506 (at [20] per McClellan J).

23    As to the second basis for Network Ten’s objection, the fact the proceeding concerns an alleged sexual assault gives one pause. But this is one factor in a mosaic of competing considerations and interests.

24    Needless to say, this is a civil trial. The various practices in criminal trials referred to by Network Ten have no direct application. This does not mean the considerations informing these specific legislative measures are irrelevant, just that the transparency of open justice should be the primary consideration. Moreover, it is not irrelevant in this case that it is not disputed that Ms Higgins and others have specifically volunteered to give evidence in support of a truth case, did not maintain anonymity in the aborted criminal proceedings in the Supreme Court of the Australian Capital Territory, and have engaged in extensive publicity in relation to the factual substratum of this proceeding: see, similarly, Lehrmann v Queensland Police Service [2023] QSC 238 (at [81]–[92] per Applegarth J).

25    Having said this, if during the trial a party or witness urges the Court to reconsider whether there should be livestreaming of a particular and limited aspect of the evidence, I will allow such an argument to be made. But the default position of open access to all testimonial and documentary evidence (as reflected in Pt VAA of the FCA Act) should be made plain subject to it being proven necessary to take a different course (remembering that “necessary” is a strong word: Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 (at 664 [30] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ)). Given this is the case, it seems to me that the optimal way of achieving open justice is for the existing online Court file to be maintained and livestreaming to continue, subject to me being persuaded to adopt an exceptional and different course for any specific aspect of the evidence.

26    Thirdly, Network Ten’s asserted concerns for Mr Lehrmann’s right to a fair trial are misdirected. Mr Lehrmann’s express preference is for the hearing to be livestreamed. Furthermore, at least as I understand it, Mr Lehrmann has not been committed to stand trial in relation to the Queensland charges and there has been no suggestion by prosecuting authorities that the livestreaming may interfere with the orderly progression of the charges in the Queensland criminal justice system.

27    Indeed, more generally, it is relevant that Network Ten’s objection is not embraced by its opponent and has arisen in circumstances where all aspects of the case have hitherto been livestreamed, including the viva voce evidence in chief and cross-examination of Mr Lehrmann on his application for an extension of time, in circumstances where the legal representatives of all parties were then well aware of the pendency of the Queensland charges.

28    Fourthly and finally, the practical effect of the orders proposed would be to privilege access to the proceedings by journalists and those in a position to attend in person.

29    The public interest in facilitating a fair and accurate report of proceedings in court is not enjoyed by journalists to the exclusion of other members of the public. Open justice requires the courts do “nothing … to discourage the making of fair and accurate reports of what occurs in the court room” (emphasis added): John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 (at 481 per McHugh JA); Attorney-General v Leveller Magazine Ltd [1979] AC 440 (at 450 per Lord Diplock). The Court must be open to all and any who may present themselves; “[t]he remoteness of the possibility of any public attendance must never by judicial action be reduced to the certainty that there will be none”: McPherson v McPherson [1936] AC 177 (at 200 per Lord Blanesburgh, Lord Macmillan and Lord Wright).

30    The mere fact that, under Network Ten’s model, journalists will have access and will likely report extensively on the trial is an inadequate answer. This position assumes the vast bulk of interested individuals can properly assess (and perceive they can properly and adequately assess) the proceedings when their only avenue for engagement is through the prism of media reporting. This assumption is not self-evidently true, not least in circumstances where: it is accepted the case has engendered much speculation and widespread, differing comment from media commentators; it is notorious that the resources devoted to specialised and experienced court reporting have declined significantly over a number of years; there now exists a great scope for fair reports to be published by those of the general public with access to social media; and this proceeding and two related proceedings (now no longer proceeding) have been known to have been brought by an individual against mainstream media outlets and prominent journalists.

31    The considerations relating to the potential revelation of national security information, which led to Besanko J in Roberts-Smith v Fairfax Media Publications Pty Limited (No 26) [2022] FCA 46 putting in place a prophylactic measure that only a limited number of representatives of recognised media organisations would be given access to real-time livestreaming, subject to appropriate undertakings (with the recording then being released to the Commonwealth to allow sensitive information to be deleted), are not, of course, present here.

32    In making these comments, I am cognisant that Network Ten’s proposal would allow for “any other person” upon application to the Court to be treated like the journalists referred to in Network Ten’s submissions. But just as it is not the role of the Court in the usual course to ask people for their identity if they wish to observe the workings of the Court, I am not convinced there is a compelling need for members of the public only to have access to the livestream if they go through some form of application process which will then need to be processed by the staff of my Chambers.

33    The orders proposed by Network Ten should be refused. The appropriate livestreaming of proceedings of public importance facilitates open justice in the modern court room.

34    Lord Justice Sankey, as his Lordship then was, said of a notorious libel case maladroitly presided over by Lord Hewart CJ with a special jury as having “wanted very careful and patient investigation, which in my view it did not receive”: Hobbs v Tinling (C.T.) and Company, Limited [1929] 2 KB 1 (at 48). The outcome of this libel case will also require very careful and patient investigation and the best way of securing confidence in the impartiality and efficiency of the justice system is for the Court to do its best, with the aid of modern technology, to ensure that the care of the investigation can be assessed by those interested, and for the trial to take place transparently and based on publicly available evidence.

35    Finally, it should go without saying, but all those involved should be assured the Court will not tolerate abusive and unlawful conduct of any kind.

Associate:

Dated:    22 November 2023