Federal Court of Australia

Lehrmann v Network Ten Pty Limited (Confidentiality) [2023] FCA 1552

ORDERS

THE COURT ORDERS THAT:

1.    The application by News Life Media Pty Ltd (News Life Media) and the Australian Broadcasting Corporation (ABC) for suppression and non-publication orders in relation to:

(a)    the deed of settlement and release between Mr Lehrmann, and News Life Media and Ms Samantha Maiden; and

(b)    the deed of settlement and release between Mr Lehrmann and the ABC,

be dismissed.

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

REASONS FOR JUDGMENT

(delivered ex tempore, revised from the transcript)

LEE J:

1    The second respondent, Ms Wilkinson, today tendered two deeds giving effect to the settlement of two proceedings related to the current proceeding. The first is a deed of settlement and release between the applicant in this proceeding, Mr Lehrmann, and News Life Media Pty Limited (News Life Media) and Ms Samantha Maiden (News Life Media Deed); and the second is a deed of settlement and release between Mr Lehrmann and the Australian Broadcasting Corporation (ABC) (ABC Deed).

2    Mr Sibtain SC appeared on behalf of News Life Media and the ABC seeking non-publication orders in respect of both deeds pursuant to Pt VAA of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and to prevent public access to the deeds under r 2.32 of the Federal Court Rules 2011 (Cth).

3    As to the News Life Media Deed, the non-publication order proposed is carefully calibrated. News Life Media only seeks the redaction of the precise amount it is to pay to Mr Lehrmann as a contribution towards his legal costs incurred in connexion with the claim settled. The ABC seeks a much broader non-publication order, which would have the effect of preventing publication of the entire ABC Deed.

4    Both of the orders are sought on the ground specified in s 37AG(1)(a) of the FCA Act, namely that they are “necessary to prevent prejudice to the proper administration of justice” (emphasis added). They are not time specific, and it is proposed they last “until further order”.

5    Mr Sibtain’s submissions proceeded as follows: there is not only a public interest in the efficient resolution of proceedings, but also, following the introduction of Pt VB of the FCA Act, a mandatory duty upon parties to seek to resolve proceedings (see s 37N(1)), and a corresponding duty upon lawyers to assist their clients in complying with this duty (see s 37N(2)). Each deed constitutes the written recording of a paction by which, among other things, the relevant parties agreed upon express obligations of confidence as to aspects of the settlement. To allow the publication of the deeds without redactions would undermine the bargains struck and, consequently, the public interest in encouraging compliance with the overarching purpose in s 37M of the FCA Act (being the efficient and cost-effective resolution of litigation).

6    The response to these submissions is a simple one. As the High Court explained in Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 (at 664 [30] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ), “necessary” is a “strong word”. It is italicised in these reasons advisedly: an order must be required to prevent prejudice to the administration of justice. It is not enough that the order sought is objectively sensible, or desirable, or appears to be fair or a good thing: see, relatedly, Lehrmann v Network Ten Pty Limited (Livestream) [2023] FCA 1452 (at [6]).

7    In the present case, it is not only no secret, but it is plain as a pikestaff that News Life Media paid a “contribution” towards Mr Lehrmann’s legal costs. As to the ABC, although it is not apparent that express information as to a payment was published when the case settled, when the ABC Deed was produced in answer to a call (T503), reference was made, in open Court, to a costs payment.

8    Why, one asks, is it necessary to prevent prejudice to the administration of justice for there to be confidentiality orders as to the precise quantum of the amounts paid? No compelling answer was provided by News Life Media or the ABC to this question. I do not accept the incremental disclosure of the quantum paid (or the various, mainly boilerplate clauses in the ABC Deed) will serve to undermine the legitimate end of encouraging the non-curial resolution of disputes.

9    Moreover, and although this is not the test, it is not as if the amounts paid by both News Life Media and the ABC are irrelevant to the disposition of the issues in this proceeding. The amounts paid could, at least on one view, become relevant to any relief obtained by Mr Lehrmann in this case should he succeed on liability. Indeed, Ms Wilkinson has expressly foreshadowed that she will rely on the amounts paid pursuant to the deeds in reduction of any causally related damages that may be awarded (widely referred to by the well-established, statutorily recognised, but somewhat misleading label of “mitigation” of damages: see Kumova v Davison (No 2) [2023] FCA 1 (at [98])). For what it is worth, there was also a reference to relevance of the deeds to hurt to feelings, but this was not really developed (T503.36–45) and is not immediately apparent to me.

10    It is worth noting that the authorities relied upon by News Life Media and the ABC (including Oldham v Capgemini Australia Pty Ltd [2015] FCA 1149; (2015) 241 FCR 397 and Porter v Australian Broadcasting Corporation [2021] FCA 863) say nothing of what the Court is to do where the amount paid as part of the settlement of a separate proceeding is relevant to the issues in dispute at a final hearing in another proceeding.

11    Further, and although it is not determinative, in the case of the ABC Deed, Mr Sibtain accepts, as he must, that there is a possibility that the amount will become public knowledge in any event. The amount is to be paid by a statutory corporation which is the object of public scrutiny (including at Senate estimate hearings).

12    In the end, both applications fall short of the requirement to establish necessity, and ought to be dismissed.

Associate:

Dated:    7 December 2023